1992 PLP 408 (SCMR)

JUSTICE RAJA AFRASIAB KHAN (MEMBER) ‑‑‑Sajjad Ahmad (20) son of Naseer Ahmad, Khalid Mahmood (24) son of Ghulam Rasool and Muhammad Ali (22) son of Shaukat Ali, were tried by the learned Judge Special Court for. Speedy Trial‑II, Lahore, under sections 392/34, 394/34, 324/34 P.P.C. and section 7(1)(c) of Surrender of Illicit Arms Ordinance, 1991 (Ordinance NOXX of 1991). Vide judgment dated 2‑11‑1991, the learned trial Judge convicted Sajjad Ahmad and Khalid Mahmood and sentenced them to undergo imprisonment for life under sections 392/34 and 394/34, P.P.C. They were also ordered to pay a fine of Rs.1,00,000/‑ (one lac) each or in default thereof to suffer R.I. for two years each. Both of them were also sentenced to 10 years' R.I. each plus a fine of Rs.10,000/‑ each or in default to undergo R.I. for one year each under section 324/34, P.P.C. Likewise, they .were sentenced to 10 years' R.I. under section 7(1)(c) of Surrender of Illicit Arms Ordinance, 1991. It was directed that all the sentences awarded to the convicts shall run concurrently. Out of the fine amounts, if recovered, a sum of Rs. ten thousand was directed to be paid to Zaheer Ahmad and Ghulam Mohy‑ud‑Din PWs. Muhammad Ali, the third accused was, however, acquitted by the learned, trial Court by giving him the benefit of doubt.

2. Briefly stated the facts of the case are that Zaheer Ahmed son of Bashir Ahmad (1st informent) is a resident of Mohni Road, Lahore. He works at Duty‑Free Shop as. a Clearance Agent. Ghulam Mohy‑ud‑Din and his son Riaz Ahmad also work with him as such. On 2‑9‑1991 at about 7‑30 p.m., Zaheer Ahmed, Ghulam Mohy‑ud‑Din and Riaz Ahmad after having finished their daily business, were busy in counting the money while sitting in a Verandah of the office of Forest Department. In the meantime, two unknown persons came there on a Motorcycle. They parked their Motorcycle near the gate of said office and entered into its Verandah. Both were armed with Mausers. They issued threats that in case the complainant party raised an alarm, they would be done to death there and then. It was stated by the complainant that one of the accused, whose name was later known as Sajjad Ahmad son of Naseer Ahmad resident of Hafeez Ullah Road, Masoom Ganj, Lahore, took out forcibly a sum of Rs.5,000 (Five currency notes of e denomination of Rs.1,000 each) and an Identity Card from the pocket of Zaheer Ahmad. The second accused, whose name was later learnt as Khalid Butt son of Ghulam Rasool caste Kashmiri, resident of Hafiz Ullah R1 Masoom Ganj, Lahore, also forcibly took out a sum of Rs.1,50,000 and an identity card from the pocket of Ghulam Mohy‑ud‑Din. The accused when after committing the offence were about to leave the premises, complainant party raised an alarm whereupon Naeem Ullah son of Sale resident of Yakki Gate also came at the spot. The complainant party encircled the accused. Both the accused fired one shot each from their weapons at the complainant party which luckily missed the target. Encouraged by this, the complainant party apprehended the accused at the spot red‑handed. The accused tried to get themselves released and also inflicted injuries upon complainant party by giving blows from the wrong side of their weapons. complainant party also in the exercise of their right of self‑defence, gave a beating to them. The accused were overpowered along with their weapons. The local police reached the spot and both the accused were handed over to then with their weapons. Statement Exh.PA of the complainant Zaheer Ahmad was recorded by Muhammad Khalid A.S.I. on 2‑9‑1991 while the formal F.I.R Exh.PA./1 was registered by Mahboob Elahi S.I. Police Station Qila Gujjar Singh, Lahore, at 8‑05 p.m. on the same day.

3. Muhammad Khalid A.S.I. P.W.8 investigated the case. He deposed that on 2‑9‑1991 at about 7‑30 p.m., he was present on patrol duty along with other police constables near Duty Free Shop. On hearing a noise, in a nearby office of the Forest Department, he reached the spot. He found that Zaheer Ahmad, Ghulam Mohy‑ud‑Din, Naeem Ullah and Riaz had already caught Sajjad Ahmad and Khalid Mahmood. The accused had pistols in their hands Accordingly, a .30 bore pistol and 4 live cartridges P.2/1‑4 were recovered from the possession of Sabad Ahmad. These articles were taken into possession vide memo. Exh.P.B. Similarly, one loaded .30 bore pistol P.3 was recovered from the possession of Khalid Mahmood by the police officer. From the magazine of the weapon, six live cartridges P.4/1‑6 were recovered and were taken into possession vide memo. Exh.P.E. From the pocket of Sajjad Ahmad, a sum of Rs.5,000 Exh.P.S/1‑5 and an Identity Card of Zaheer Ahmad were recovered which were taken into possession vide memo. Exh.P.C' Similarly, from the pocket of Khalid Butt, a sum of Rs.1,50,000 (150 currency notes of the denomination of Rs.1,000 each) P.6/1‑150 and an Identity Card of Ghulam Mohy‑ud‑Din P.7 were recovered which were also taken into possession vide memo. Exh.P.D. Site‑plan Exh.P.J. was prepared by the police officer. Injury statements, Exh.P.K. and Exh.P.L. of Zaheer Ahmad and Ghulam Mohy‑ud‑Din, respectively, were prepared. They were sent to hospital for their medical examination. The accused were formally arrested by the police officer. On the same day, supplementary statement of Zaheer Ahmad was recorded by the investigating officer. Muhammad Ali, the third accused was searched but he could not be traced out. He was, however, arrested on 18‑9‑1991. He led to the recovery of a Motorcycle bearing No.2409‑LOD which was taken into possession vide memo. Exh.P.H.

4. Dr. Ahmad Ishaque medically examined Ghulam Mohy‑ud‑Din on 2‑9‑1991 at 8‑10 p.m. and found, the following injuries on his person :‑‑ (1) Lacerated wound 30 x 0.5 cm x scalp deed on left parieto‑occipital region of head. (2) Lacerated wound 20 x 0.4 cm x scalp deep on right occipital region of head. (3) Lacerated wound 10 x 0.3 cm x scalp deep outer to right eye‑brow. (4) Abraded swelling 3 x 2 cm on edge of nose. All the injuries were declared simple having been caused with blunt weapon within a duration of six hours. The said doctor on the same date at 8‑15 medically examined Zaheer Ahmad and found the following injuries on his person :‑‑ (1) Lacerated wound 15 x 04 cm scalp deep on the right eye‑brow. (2) Abraded swelling lox 0.5 cm on right forehead. All the injuries were declared simple having been caused with a blunt weapon within a duration of six hours. Dr. Ahmad Ishaque was, however, not produced by the prosecution during the trial and instead Amjad Ali P.W.3 a Junior Clerk in the office of Police Surgeon, Lahore, appeared to prove the aforesaid two medico‑legal reports of injured witnesses. He deposed that he had been working with Dr. Ahmad Ishaque and that he knew his handwriting and signatures. He stated that the medical reports Exh.P.F. and Exh.P.G. of Ghulam Mohy‑ud‑Din and Zaheer Ahmad, respectively, were written by Dr. Ahmad Ishaque and he also signed the abovesaid reports.

5. Eye‑witness account was furnished by Zaheer Ahmad P.W.1, Ghulam Mohy‑ud‑Din P.W.2, Muhammad Naeem P.W.5 and Riaz Ahmad P.W.6.

6. The appellant Sajjad Ahmad in his statement under section 342, Cr.P.C. denied the allegations levelled against him. He made a detailed statement before the Court. He disclosed that about 8 days ago, he was told by one of his friends that Zaheer Ahmad, complainant, was a dealer in dollars. He deposed that he had to go to Hong Kong and as such was in need of one thousand dollars. He went to Duty‑Free Shop and met Zaheer Ahmad and Ghulam Mohy‑ud‑Din and asked them to make arrangement of Dollars for him in lieu of price. They received a sum of Rs.20,000 from the appellant with a view to provide one thousand dollars to him. They also asked the appellant to contact them after ` two days. After two days, the appellant went to the complainant who again gave another date of two days for giving him foreign currency. When the appellant approached the complainant for the aforesaid purpose, the complainant again failed to give foreign currency to him as promised and asked him to wait further. On this, they quarrelled with each other. The dispute was, however, patched up with a promise by the complainant that the appellant shall be given the foreign currency on 2‑9‑1991 without fail. On the said date, early in the morning the appellant approached the complainant when again he was asked to come in the evening to receive the money. The appellant Sajjad Ahmad told Khalid Mahmood that the complainant was not giving him Dollars in lieu of the money already paid to him. The appellant, therefore, took Khalid Mahmood with him in a rickshaw to the Duty‑Free Shop. Zaheer Ahmad and Ghulam Mohy‑ud‑Din were present at their place in the garden in front of the Duty‑Free Shop. They asked the complainant to pay the dollar amount to them. The appellant had a sum of Rs.8,000 in his pocket to pay the additional price because by that time the price of the dollars had increased. On the call of Ghulam Mohy‑ud‑Din 4/5 stout healthy persons reached the spot and took the accused away at a distance of 50/60 yards and started abusing them without any justification. Zaheer Ahmad caught hold of Khalid Mahmood whereupon Ghulam Mohy‑ud‑Din slapped him. In turn, the appellant also caught Zaheer Ahmad from his collar and gave him a push towards the road. He fell down and received injuries as a result of his fall. On account of this fight between the parties, the traffic was blocked. A traffic police constable reached there. The appellant Sajjad Ahmad, Khalid Mahmood, Zaheer Ahmad and Ghulam Mohy‑ud‑Din were taken to the police station. The other companions of the complainant party ran away from the spot., A search upon accused was made .and in consequence his money was taken into possession by the police. They were also subjected to torture by the police. The police asked the complainant and Ghulam Mohy‑ud‑Din to sit outside. The appellant further stated that it was disclosed to the Police that there was a dispute about payment of money between the parties and that the accused had to receive some foreign exchange from the complainant party in lieu of price already paid by them. The Police Officer gave an assurance that money will be returned to the accused party. It was mentioned that the police did not get them medically examined despite the fact that they were also injured. The appellants stated that they were subjected to severe torture by the police and were asked to make a confessional statement saying that they had committed a robbery. However, they did not oblige the investigating officer by making a confessional statement. It was further stated by the appellant Sajjad that he had a business place at McLeod Road, Lahore, and that in connection with his business he wanted to visit Hong Kong and, therefore, he was in need of dollars. In support of his plea, the appellant produced his passport Exh. D.D. pertaining to the year 1990, Certificate of World Wide Traders Exh. D.E. dated 28‑10‑1991, Vaccinations Certificate Exh.D.F. having been issued by the Corporation. Three daily Newspapers, namely, Nawa‑i‑Waqt, Jang and Musawaat vide Exh.D.G., Exh.D.H. and Exh.D.J. to show that the commission of the offences was published in the press were also produced. Khalid Mahmood, appellant No.2, supported appellant,No.1 by making a statement under section 342, Cr.P.C. Muhammad Ali, acquitted co‑accused, took a different plea by saying that he had been working at the Duty‑Free Shop. About six months ago, he had a quarrel with the complainant and that he left the business because the. foreign currency was dealt with illegally by the complainant. He further deposed that he had been implicated in the case falsely. He pleaded his innocence.

7. The learned' trial Judge came to .the conclusion that the four eye?witnesses had no motive to falsely implicate the appellants because they were not known to them, previously. It was noted that Ghulam Mohy‑ud‑Din and his son Riaz Ahmad had a joint business with Zaheer Ahmad complainant and that all the three were disinterested witnesses, and as such, had no grudge or grouse against the appellants to falsely implicate them in the case. It was held that the prosecution evidence was corroborated by unimpeachable circumstances. According to the learned trial Judge, injuries on the persons of Zaheer Ahmad and Ghulam Mohy‑ud‑Din did provide sufficient corroboration to the case of the prosecution.

8. It is contended by the learned counsel that there was not an iota of evidence to connect the appellants with the commission of the crime. According to the learned counsel, the witnesses were interested and that there was no independent. corroboration available on record in their support. Learned counsel argues that the medical evidence has to be excluded from consideration because the Doctor (Dr. Ahmad Ishaque) who medically examined Ghulam Mohy‑ud‑Din and Zaheer Ahmad was not produced by the prosecution before the Court and instead a Junior Clerk was produced to prove the medical evidence. It is stressed that no process was issued to said Doctor by the Court according to law. No evidence of the process‑server was recorded to show that Dr. Ahmad Ishaque was not available to appear before the Court to depose evidence. According to the learned counsel, the evidence deposed by Amjad Ali P.W.3 cannot at all be taken into consideration because no attempts were made to prove that Dr. Ahmad Ishaque was not available. It is contended that since the medical evidence was not proved according to law, the charge against the appellants under sections 394/34 and 324/34, P.P.C. would fail automatically. It is argued by the learned counsel that at best it may be said that an offence under section 379, P.P.C. was made out against the appellants under the given circumstances. Learned counsel also argues that no evidence was recorded on oath and as such even the evidence regarding the theft cannot be read because it was recorded on solemn affirmation and certainly not on oath as required by law on the subject. Learned counsel adds that it was a fit case for remand for re‑trial of the accused. The learned State counsel supported the judgment of the learned trial Court by adopting the reasons already given therein.

9. We have heard the learned counsel for the parties at considerable length and have read the whole record with care with their assistance. We are of the view that charge under sections 394/34 and 324/34, P.P.C. was not proved in accordance with law. It is in the evidence that Doctor Ahmad Ishaque was not produced by the prosecution to prove the injuries on the person of Ghulam Mohy‑ud‑Din and Zaheer Ahmad P.Ws. In order to prove the medical reports, Amjad Ali, a Junior Clerk in the office of the Police Surgeon, Lahore, was produced by the prosecution. The evidence deposed by this witness is not acceptable in law because no attempts were made by the prosecution to prove that Dr. Ahmad Ishaque was summoned to appear before the Court as a witness but was not available at the relevant time. The record shows that a short order was passed by the learned trial Judge on 28‑10‑1991 showing that Dr. Ahmad Ishaque had gone abroad on one year's leave and as such his attendance could not be procured without an amount of delay which appeared to the learned Court unreasonable. The learned trial Judge, therefore, proceeded to accept the secondary evidence of Amjad Ali, P.W.3 in the case ignoring the law on the subject. In our view, the reasons given by the learned trial Judge for non‑production of Dr. Ahmad Ishaque are not sufficient to meet the legal requirements of this case. Indeed, it was a serious legal flaw in the case of the prosecution which was apparent on the very face of record. Law requires that a summon should have been issued to Dr. Ahmad Ishaque for his appearance before the Court. The evidence of the process‑server should have been recorded to show that Dr. Ahmad Ishaque had gone abroad and as such was not available to depose evidence. This legal procedure was not adopted by the learned trial Judge in that behalf. Accordingly, we proceed to' exclude the evidence of Amjad Ali, P.W.3 from consideration. The irresistible conclusion is that the injuries on the person of Ghulam Mohy‑ud‑Din and Zaheer Ahmad were not proved according to law. In consequence, the conviction recorded against the appellants under sections 394/34 and 324/34, P.P.C. is set aside.

10. We also hold the view that the prosecution has failed to prove its case against the appellants under section 7(l)(c) of the Surrender of Illicit Arms Ordinance, 1991, inasmuch as the, prosecution did not at all lead any evidence to show that the weapons of offence were kept by the appellants without having any licence for them and so no questions were put to the appellants in their statements under section 342, Cr.P.C. that they were holding the weapons in question without licences. We hold that no conviction and sentence could be recorded against the appellants under this charge as well in view of this state of affairs. The conviction and sentence of the appellants under section 7(l)(c) of Surrender of Illicit Arms Ordinance, 1991, is set aside and they are acquitted of this charge as well.

11. However, we have been persuaded to hold that offence of robbery was proved to have been committed by the appellants on the day of occurrence. In support of the charge, the prosecution produced Zaheer Ahmad, P.W.1 and Ghulam Mohy‑ud‑Din, P.W.2. Their evidence was materially supported by Muhammad Naeem P.W.5 and Riaz Ahmad P.W.6. Ghulam Mohy‑ud‑Dir. stated that Sajjad Ahmad and Khalid Mahmood appellants while armed with pistols came at the spot when he and his companions were counting their money in the Verandah of the office of the Forest Department near the Dutv?Free Shop. Zahcer Ahmad P.W.1 deposed that at pistol point, he was deprived of a sum of Rs.5,000 and the National Identity Card by Sajjad Ahmad, appellant. Simiarly, Khalid Mahmood appellant deprived Ghulam Mohy‑ud-?Din of a sum of Rs.1,50,000 and his National Identity Card at pistol point. it is proved that both the appellants were caught red‑handed at the spot by the prosecution witnesses alongwith their weapons. There are no reasons to disbelieve Zaheer Ahmad P.W.1 and Ghulam Mohy‑ud‑Din P.W.',

2. The recovery of the pistol and the currency notes from the possession of` the appellants was also proved beyond any reasonable doubt. The appellants are thus guilty of commission of the offence of robbery which definitely falls within the mischief of section 390, P.P.C.

12. The objection that the evidence of the P.Ws. was not recorded by the learned trial Judge on oath is not such a fatal flaw which may vitiate the whole trial and as such it is repelled. The irregularity is certainly curable under section 13 of the Oaths Act, 1873. In support of this view Zeb‑ul‑Haram's case (PLD 1991 FSC 1) was referred by the learned State Counsel. Learned counsel for the appellants has drawn our attention that form of oath has been amended by the High Court and as such Courts are bound to record evidence after administering oath to the witnesses according to the form of oath. The latest form of oath as prescribed by the High Court is as follows:‑‑‑ "I swear by Allah Almighty that the evidence. that I shall give before the Court in this case/matter shall be the truth; the whole truth and nothing but the truth; that I shall conceal nothing from the Court; and that if I say anything which is untrue or conceal anything, the wrath of Allah may fall on me." All the Courts are now bound under law to administer oath to the witnesses in the aforesaid form.

13. The defence plea having been taken by the appellants does not inspire confidence inasmuch as no documentary evidence was produced to show that Sajjad Ahmad, appellant No.1, had in fact given a sum of Rs.20,000 in advance to Zaheer Ahmad, complainant with a view to purchase dollars from him. We cannot believe the defence version that without the issuance of a receipt, the appellant Sajjad Ahmad would have paid a big amount of Rs.20,000 to Zaheer Ahmad, complainant, in order to purchase dollars without knowing him previously. No evidence was led by the appellants in support of their plea. This G being so, we proceed to reject the defence version outright. We are persuaded to accept the prosecution version as given by Zaheer Ahmad, P.W.1 and corroborated by Ghulam Mohy‑ud‑Din, P.W.2, Muhammad Naeem P.W.5 and Riaz Ahmad P.W.6. P.W.1 and P.W.2 are the affected witnesses. Their presence at the spot cannot be doubted inasmuch as it was also admitted by the appellants that they were present at the spot. Similarly, Muhammad Naeem P.W.5 appears to be a natural witness. He has given sufficient explanation to be present at the spot at the time of occurrence. He is an Auditor in the office of the Forest Department. He used to sit in the late hours of the night in order to complete his account‑sheets. We, therefore, hold that there is sufficient corroboration to the evidence of Zaheer Ahmad P.W.1 and Ghulam Mohy‑ud?-Din P.W.2. The evidence of these witnesses demonstrates beyond any shadow of doubt that they were robbed of their money and National Identity Cards at pistol point on the day of occurrence. The result of the above discussion is that the prosecution was able to prove the charge under section 392/34, P.P.C. against the appellants beyond reasonable doubt, and as such, we proceed to maintain the conviction of the appellants on the said charge and sentence them to seven (7) years' rigorous imprisonment and a fine of Rs.20,000 (Rupees twenty thousand) each. In default of payment of fine, they will undergo further rigorous imprisonment for two years each. However, they shall be entitled to the benefit of section 382‑B, Cr.P.C. with this modification in the conviction and sentence, the appeal is partly allowed.

14. While parting with this judgment, we may observe that the learned trial Judge was not satisfied with the investigation of this case and we think rightly so, as it was conducted in a slipshod manner. N.H.Q./20/SA.C. ??????????????????????????????????????????????????????????????????? Appeal partly accepted.