1989 P Cr (PLP)

KHALID PAUL, J.‑‑ By this judgment we propose to dispose of Criminal Appeals Nos. 51 and 56 of 1988/BWP which have arisen from the judgment of learned Judge, Punjab Special Court for Speedy Trials No.VI, Bahawalpur, whereby he on 31‑8‑1988 convicted Imdad Ali and Muhammad Ashraf appellants under section 392/397, P.P.C. and sentenced them to 7 years' R.I. each and fine of Rs.5,000 each or in default thereof to further undergo 2 years' R.I. each.

2. The occurrence took place on 6‑12‑1987 at 6‑30 p.m. on Marrot Fortabbad Road near Chak No. 281/HR in the area of Police Station Fortabbas, District Bahawalnagar. The F.I.R. Exh.P.A. was lodged by Muhammad Aslam P.W. at 8‑15 p.m. on the same day.

3. The prosecution case, in brief, is that on the eventful day Muhammad Aslam P.W.1 was driving Bus No.SA‑2486 from Chak No. 313/HR to Fortabbas. When the said bus had gone about two squares ahead of Chak No. 281/HR, two passengers sitting behind the driver's scat (who later on were found to be Muhammad Ashraf and Imdad Ali, appellants) stood up. The taller of the two pointed his pistol towards Muhammad Aslam P.W. and asked him to stop the bus and hand over his wrist watch to him while the other one pointed his pistol towards the passengers. Muhammad Aslam P.W. stopped the bus whereupon the tall man snatched away his wrist watch and also took away Rs.1,500 from the front pocket of his shirt. His companion asked the passengers to hand over their watches and money to him. The passengers raised alarm and tried to apprehend them whereupon they got down from the bus, fired two shots each and then ran away towards the fields. Muhammad Aslam .P.W. drove the bus to Fortabbas Bus Stand where he contacted Muhammad Hussain P.W.3 and Shaukat Ali (not produced). Thereafter alongwith all the passengers and the said P.Ws. he proceeded to the Police Station Fortabbas and lodged the F.I.R. which was recorded by Inspector Zia Feroze, S.H.O. P.W.5.

4. After recording the F.I.R., Zia Feroze, Inspector proceeded to the place of occurrence alongwith the witnesses. He inspected the spot and recovered two crime empties from there which were taken into possession vide memo. Exh.P.C. He also prepared two moulds of foot prints Exhs.P.9 and P.10 vide memo. Exh.P.D. Thereafter following the foot tracks they reached the house of Muhammad Bakhsh in Chak No. 279/HR. In the Bethak of the said house Imdad Ali and Muhammad Ashraf appellants were found sleeping. The P.Ws. identified the said appellants as the persons who had robbed them. The Inspector arrested them. During personal search of Muhammad Ashraf appellant, watch EXhS.P.1 and 8 currency notes of the denomination of Rs.100 Exh.P.2/1‑8 were recovered and taken into possession vide memo. Exh.P.D. During the personal search of Imdad Ali appellant, 7 currency notes of denomination of Rs.100 Exh.P.2/9‑15 and his identity card Exh.P.7 were recovered and taken into possession vide memo. Exh.P.E. The Inspector also recovered from under the pillow of Muhammad Ashraf appellant revolver Exh.P.5 containing four live bullets Exh.P.5/1‑4 and two fired bullets Exh.P.5/5‑6 and a bandolier Exh.P.6 containing 23 live bullets Exh.P.6/1‑23 which were taken into possession vide memo. Exh.P.G. Similarly, the Inspector also recovered from under the pillow of Imdad Ali appellant pistol Exh.P.3 containing two five cartridges Exh.P.4/1‑2 which were taken into possession vide memo. Exh.P.F. The Inspector also took into possession fleet shoes of Muhammad Ashraf appellant Exh.P.12/1‑2 and a pair of Chappals of Imdad Ali Exh.P.13/1‑2 which were taken into possession vide memo. Exh.P.H. All these recovery memos were attested by Muhammad Hussain and Shaukat Ali P.Ws. The Inspector also prepared the site plan of the place of occurrence and the place of arrest of the appellants which are Exhs.P.K and P.L. respectively. In the opinion of the Inspector the two moulds of footprints taken from the place of occurrence matched with the shoes of the appellants.

5. At the trial, the prosecution examined 5 witnesses including the three eye‑witnesses i.e. Muhammad Aslam P.W.1, the driver, Shaukat Ali P.W.2 the cleaner and Muhammad Shuban P.W.4, a passenger of the fateful bus. Muhammad Hussain who remained with the police party throughout the investigation was examined as P.W.3. Inspector Zia Feroze, the Investigating Officer appeared as P.W.5 They all supported the prosecution case.

6. In their statements under section 342, Cr.P.C. the appellants denied having participated in the occurrence and pleaded that they had been falsely implicated at the instance of the police.

7. Relying on the prosecution evidence and disbelieving the plea of the appellants which they had raised in their statements under section 342, Cr.P.C. the learned trial Court convicted and sentenced the appellants as stated above.

8. The learned trial Court has based the conviction of the appellants on: (i) the track evidence; (ii) identification of the appellants by the eye‑witnesses at the time of former's arrest; and (iii) recoveries.

8. It has been contended on behalf of the appellants that track evidence in the present case was of a very weak and flimsy character, inasmuch as the foot marks picked up from the spot and identified by the Investigating Officer as those of the appellants were not of bare feet but were of shoes alleged to have been worn by the appellants at the time of occurrence. The contention is not devoid of force. Such type of track evidence has always been considered as unreliable undependable and untrustworthy and Courts have shown unambiguous reluctance to act upon such evidence. Furthermore, no track identification parade was either arranged or held in this case. The Investigating Officer prepared the moulds, compared them with the shoes of the appellants and declared that the said shoes matched with the impressions picked up by him. This was not enough. He was not an expert on this subject nor did he appear to be one. As such his evidence, in the absence of any reliable and independent corroboration is not worthy of any credence.

9. The prosecution story about the tracks which allegedly led to the arrest of the appellants is not only improbable but highly doubtful. The occurrence was reported to the police at 8‑15 p.m. According to Muhammad Aslam P.W. the police party alongwith the P.Ws. has reached the place of occurrence at 9‑00 p.m. On reaching there, the Investigating Officer inspected the spot recovered the crime empties, made moulds of the foot marks and prepared the site plan and the recovery memos. It must have taken him at least one hour to do all this. Thereafter i.e. at about 10 p.m. he had proceeded to follow the foot marks and within an hour was in the Baithak of Muhammad Bakhsh where the appellants were found sleeping (it is in the Urdu version of the statement of Inspector Zia. Feroze P.W.5 that they had reached the said Baithak at 11‑00 p.m.) The distance between the place of occurrence and the said baithak according to the Investigating Officer was about 3/4 kilometers. It is in the prosecution evidence that the said tracks sometime appeared on the Katcha path and sometime on the metalled road. In these circumstances, it was well nigh impossible to cover such a long distance on foot in one hour especially when they were following the tracks during a dark winter night.

10. Before Muhammad Aslam P.W. proceeded from the place of occurrence to Fortabbas for reporting the matter to the police he did not cover the foot marks of the culprits. When he returned to the spot alongwith the police party and the P.Ws., about a dozen of them, the Investigating Officer did not straightaway pick up the footprints and prepare their moulds. In fact he first inspected the spot, drew up the site plan, took into possession the crime empties and then prepared the moulds. During this period when about a dozen persons were present at the spot, it was very difficult that the footprints of the culprits had remained intact and untrampled. Another thing which has struck us as unusual is that the Investigating Officer had come fully equipped for the preparation of moulds of the footprints because, as is evident from his memo. Exh.BB., he had with him the frames and the plaster of paris. There is nothing on record to suggest that Muhammad Aslam or any other P.W. had informed the Investigating Officer about the presence of foot marks at the spot. Had there been any such information the Investigating Officer should have, before doing anything else, picked up the footprints and prepared the moulds.

11. In memo. Exh.P.B., whereunder moulds were prepared. Muhammad Hussain P.W. has been described as a tracker and it is specifically mentioned that he was well‑versed in track identification but in his statement before the trial Court as P.W.3 he has not said a word on the point that the footprints picked up from the spot ‑matched with the foot marks/shoes of the appellants. In fact nowhere in his statement as P.W.5 the Investigating Officer has mentioned Muhammad Hussain P.W. as a tracker. The statement of Muhammad Hussain, however, throws sufficient light on his so called expertise. After admitting that he was a bus cleaner he stated that he never received any training as a tracker nor did he adopt this craft as a profession and that he had never been called by the police to act as a tracker. His testimony has not lent any credibility to the track evidence, rather it indicates that the prosecution had introduced false and fake witnesses to build up their case.

12. According to the prosecution evidence the tracks had led the police party to the Bethak of Muhammad Bakhsh from where they arrested the appellants who were fast asleep. The Bethak of Muhammad Bakhsh is situated in Chak No.,

279. No witness from that locality was asked to join the investigation and witness the proceedings. It is mentioned in the evidence that a Chowkidar of the Chak was called upon and asked to knock at the door of the Bethak but apart from this he is not stated to have done anything. He could have been an independent witness but he was neither cited nor examined in Court as a prosecution witness. A pertinent question was raised by the learned counsel for the appellants that if the appellants has been arrested from the Bethak of Muhammad Bakhsh why the said Muhammad Bakhsh was let off and why he was not hauled up for harbouring criminals. The prosecution had no answer. The prosecution witnesses have made contradictory statements about as to whether or not Muhammad Bakhsh and his sons were interrogated and taken to the police station. These statements have further cast a shadow of doubt on the prosecution case.

13. Now we come to the identification of the appellants. According to the prosecution case the appellants were sitting in the bus behind the driver's seat. They, therefore, were not facing either the driver or the passengers, only two in number, who were sitting behind them. They are stated to have suddenly stood up with their pistols one pointing at the driver and the other at the passengers. It took them a few moments to snatch away the wrist watch and money from the driver and then they decamped. In the F.I.R. it was not mentioned that the inner lights of the bus were on but during their statements before the trial Court the prosecution witnesses made improvements by saying that the said lights were on. Even then the time during which the occurrence took place, was so short that the witnesses could hardly have a momentary glimpse of the culprits and in that state of fear and confusion they could not have properly remembered their faces. The' g appellants were not apprehended at the spot. They were also not caught as a after the incident, had gone away result of hot pursuit. The prosecution witnesses, to Fortabbas to report the matter to the police instead of chasing the appellants. In such circumstances holding of an identification parade was necessary which was never held. The statements of the prosecution witnesses to the affect that they had identified the appellants as the culprits in the Bethak of Muhammad, Bakhsh do not inspire confidence.

14. This brings us to the evidence about recoveries. According to the prosecution case crime empties Exh.P.11/1‑2 were recovered from the place of occurrence and taken into possession vide memo. Exh.P.C. Subsequently revolver P.5 containing 2 live and 2 fired bullets alongwith bandolier P.6 containing 23 live bullets was recovered from under the pillow of Muhammad Ashraf appellant. These articles were taken into possession vide memo. Exh.P.G. At the same time pistol Exh.P.3 containing 2 live cartridges Exh.P.4/1‑2 was recovered from under the pillow of Imdad Ali appellant, which was taken into possession vide memo. Exh.P.F. Admittedly the said fire‑arms and the crime empties were not sent to the Forensic Science Laboratory for opinion if the said empties had been feed from these weapons. As such, these recoveries are of no consequence and do not connect the appellants with the offence charged against them.

15. According to the prosecution evidence watch Exh.P.1 (belonging to Muhammad Aslam P.W.) and 8 currency notes of the denomination of Rs.100 each Exh.P.2/1‑8 were recovered from the possession of Muhammad Ashraf appellant vide memo. Exh.P.D. Similarly currency notes of the value of Rs.700 Exh.P.2/9‑15 alongwith his identity card Exh.P.7 were recovered from the possession of Imdad Ali appellant vide memo. Exh.P.E. The currency notes in questions are ordinary currency notes with no special marks of identification and, therefore, it could not be said with certainty that they were the same which the appellants had allegedly snatched away from Muhammad Aslam P.W. In his statement before the trial Court Muhammad Aslam P.W. admitted that he would not be able to identify the said currency notes if they were mixed with other such notes. This recovery, therefore, is of no value and does not connect the appellants, with the crime charged against them.

16. As regards the recovery of watch Exh.P.1, it was specifically mentioned in the F.I.R. that on its strap the words `Advance 85' were written. The relevant recovery memo. Exh.P.D. also shows that on the strap of his watch the said words were inscribed. It is very strange that in his statement before the trial Court Muhammad Adam P.W., who was the owner of the watch, did not mention that on the strap of his watch the aforesaid words were inscribed. Rather he has stated that his watch did not have any specific identification mark and that similar watches could be purchased from the market. In our opinion this part of the statement of Muhammad Aslam P.W. is of utmost importance and is indicative of the fact that the F.I.R. in the present case had been recorded after the recoveries. Had the F.I.R. been genuinely recorded before the recoveries on the statement of Muhammad Aslam, P.W., then he would have definitely stated before the learned trial Court that his watch bore spec identification mark i.e. inscription of the words `Advance 85' on its strap and would not have stated that it did not have any such identification mark. Possibility cannot be ruled out that the watch had been planted. Be that as it may, the watch Exh.P.1 is an ordinary watch and such like watches are easily available in market and thus its alleged recovery from Muhammad Ashraf appellant is of no consequence.

17. As a result of the above‑mentioned discussion we are of the confirmed view that in the present case the prosecution had not been able to establish its case beyond reasonable doubt. The appellants, therefore, were entitled to the benefit of doubt which is granted to them. Consequently the appeals are accepted and the impugned order of conviction and sentence is set aside. The appellants shall be set at liberty forthwith if not required in any other case. M.Z.S./1‑118/L Appeal accepted.