Urdu Typing 623 (PLP)

SARDAR MUHAMMAD DOGAR, J.‑‑ Muhammad Yaqub (31), Shaukat Ali (22), Munawar Khan (21), Ishtiaq Ahmad (22) and Muhammad Azam alias Chiragh Bali (23‑24) were tried alongwith lbrar Hussain under section 395, P.P.C. for having committed dacoity in the Allied Bank of Pakistan Limited, Branch Sadra Badra, District Sialkot, by the Judge, Punjab Special Court for Speedy Trial No. IX, Gujranwala. Learned trial Judge acquitted Ibrar Husain vide judgment dated 25‑11‑1987, and convicted the other five under section 395, P.P.C. and sentenced each of them to undergo R.I. for 10 years, plus to pay a fine of Rs.50,000 each, in default whereof to suffer R.I. for 5 years each.

2. The convicts have filed appeals.

3. The occurrence had taken place in the abovesaid Branch of Allied Bank of Pakistan Ltd. on 28‑6‑1986 at 10‑15 a.m. Formal F.I.R. Exh.P.B./1 was registered at Police Station Daska by Muhammad Ishaq, M.H.C., P.W.4, on 28‑6 1986 at 11‑30 a.m., on receipt of statement Exh.P.B. of Sh. Muhammad Mahmud, Manager of the Bank (P.W.5) recorded by Muhammad Sarwar, S.I. P.W.3, on the same day at 11‑00 a.m. According to F.I.R. a Toyota car of 1980 model, bearing plate No. GAA/844 stopped in front of the bank at 10‑15 a.m. four youngsters came out of that. One of them was of heavy weight bearing moustache, two had gown short beard and one was clean shaved. All of them were wearing shirts and Shalwars of dark brown (ﻯراوﺳﻧ) colour and appeared to be aged about 24 to 25 years, with estimated height of 5‑1/2 feet. All of them entered the bank armed with shotguns. They encircled the Manager and the Cashier, and asked them to raise their hands. Two customers were also present there. A sum of Rs.26,966 lying there was lifted by one of them. The keys were also demanded by one of them from the Manager but he had hidden the same and did not hand over. The accused then put the employees and the two customers, namely, Ijaz Hussain and Rehmat Ullah, in the strong room and moved away riding the same car, towards Daska. While leaving, they had also taken away .12 bore shotgun No.11663 Shaheen Make alongwith 9 cartridges, belonging to the bank. The shopkeepers opened the strong room to release the bank employees and the other persons, whereafter the Manager reported the occurrence.

4. The investigation was carried out by different Police Officers. Except Shaukat Ali appellant about whom it has been stated specifically by Ashiq Ali S.I. P.W.12 that he was arrested on 26‑7‑1986, none of the witnesses clearly stated as to when the other accused were arrested? However, the same S.I. stated during cross‑examination that the accused had been arrested prior to 26‑7‑1986. In fact, it appears that they were in custody in some other cases, and then their arrests were effected in this case as well. The accused, according to same S.I. were sent to jail on 27‑7‑1986. They were .put to identification parade in the District Jail, Sialkot on 21‑8‑1986. The identification parade was supervised by Mr. Khalid Nawaz, M.I.C., Sialkot. All the appellants were identified by Sh. Mahmood Ahmad P.W.5, Muhammad Ali P.W.6 and Rehmat Ullah P.W.7. The other two witnesses, i.e. Ijaz Hussain customer and Nur Ahmad gunman of the Bank who had also participated in identification parade, were not produced at the trial. The Magistrate P.W., however, during his statement at the trial disclosed that Ijaz Hussain had also identified all the appellants while Nur Ahmad had identified only Shaukat Ali and Muhammad Yaqub appellants. It is on record, per statement of Ashiq Ali S.I. P.W.12 and Imtiaz Ahmad P.W.9 that gun P.23 was taken into possession from Shaukat Ali appellant when he was arrested during a raid on 26‑7‑1986. (Dates have specifically been given by Ashiq Ali P.W.). It was taken into possession vide memo. Exh.P.I.

5. After the identification parade the Police obtained the custody of all the appellants. Ishtiaq appellant then led to the recovery of Rs.5,000 from his residential house on 3‑10‑1986 which were taken into possession vide memo. Exh.P.D. On the same day Shaukat Ali appellant led to the recovery‑ of Rs.6,000 which were taken into possession vide memo. Exh.P.E. Munawar Khan appellant also, on the same day, led to the recovery of Rs.3,500 which were taken into possession vide memo. Exh.P.G. Rs.1,200 were got recovered on the same day by Muhammad Azam alias Bali appellant from the Dera of Ibrar Hussain (acquitted accused), which were taken into possession vide memo. Exh.P.F. Muhammad Yaqub appellant also led to the recovery of Rs.3,500 from his residential house on the same day, which were taken into possession vide memo. Exh.P.H. The evidence regarding these recoveries has been deposed to by Ashiq Ali, S.I./S.H.O., P.W.12 and Khushi Muhammad, Head Constable PW.8. Muhammad Iqbal the only witness from the public was not produced at the trial and was given up as unnecessary. 5‑A. Abdur Razzaq P.W.1.1 was examined to prove the recovery of gents and ladies suits and other clothes alongwith barrel of a gun at the instance of Muhammad Yaqub appellant. His evidence, however, does not pertain to this case and therefore, need consideration.

6. Statements of twelve prosecution witnesses were recorded at the trial. Sh. Muhammad Mahmud P.W.5, who had lodged the F.I.R., Muhammad All P.W.6 who was working as a Cashier in the bank, and Rehmat Ullah who had gone to deposit the electricity bill in the bank, were examined for the ocular account.

6. Sh..Muhammad Mahmud P.W.5 while giving the account of occurrence, made improvement over his statement Exh.P.B., on the basis of which F.I.R. was recorded. In that, he added that five persons had come in the car and the fifth had remained sitting on the driver's seat. He also stated that the accused had taken away whatever was in his pocket. He gave the figure of the decoyed amount to be Rs.22,000 instead of Rs.26,966, stated by him in the F.I.R. He testified the fact of having participated in the identification parade and of having identified all the rive appellants. On confrontation during cross‑examination he was not found to have stated anything about the fifth accused to have come alongwith the four accused or of having remained sitting on the driver's seat. In answer to another question he stated that Shaukat Hayat Inspector had told him 10‑12 days after the occurrence of dacoity that accused in the case had been arrested. He admitted that while identifying the accused in the jail, he had not pointed out as to which of the accused had played what part.

7. Muhammad Ali Cashier who appeared as P.W.6 also stated that four persons after coming out of the car had entered the bank while one had remained outside standing near the car. He corroborated the statement made by Sh. Muhammad Mahmud PW.5 about the four accused having entered the bank and of having decoyed the bank money under coercion but he gave the figure of the decoyed amount as Rs.21,734.61. He also testified the fact of having identified all the five appellants during the identification parade held in the District Jail on 21‑8‑1986. During cross‑examination he stated that he had himself seen the fifth man standing outside the bank near the car and that it was incorrect to suggest that somebody had informed him about the presence of the fifth outside the bank, after the occurrence. However, on confrontation, with his statement Exh.DA., he was found to have stated that, (Urdu Typing 623)". He was not found to have mentioned therein that he had seen the fifth person outside the bank near the car. Both the witnesses during cross‑examination admitted that they had not given any particular marks of the accused who had committed dacoity, in their statements before the police. (It may be noted here that in the typed statement of Muhammad Ali P.W.6, the cross‑examination done by Mr. M. Azhar, Advocate at page 29 of the paper book, does not appear to pertain to his statement. This might be pertaining to Rehmat Ullah).

8. Rehmat Ullah P.W.7 corroborated the‑ statements made by P.W.5 and P.W.6 at the trial. He also testified the fact of having taken part in the identification parade and of having identified all the appellants there. All the three witnesses denied the suggestion that the accused had been shown to them before they were asked to identify them.

9. Imtiaz Ahmad P.W.9 who was present with the police at the time of arrest of Shaukat Ali appellant and had attested the recovery memo. pertaining to .12 bore gun taken from the possession of Shaukat Ali appellant corroborated the statement of Ashiq Ali, S.I. P.W.12 in this regard. He, however, during cross examination admitted that the Inspector had asked him to join the raiding party at Aik Bridge, Sialkot. He admitted that he was neither Lumberdar nor a member of any social organization. He denied the suggestion that he was a stock witness, and expressed inability to say as to why he was picked to be a witness. He admitted that at the time of recovery proceedings some people had gathered at the spot.

10. Ashiq Ali, S.I./S:H.O. P.W.12 gave the account of recoveries effected at the instance of the appellants and the identification parade held at the jail premises.

11. Mr. Khalid Nawaz, M.I.C. who had supervised the identification parade appeared as‑P.W.1. He admitted that he had not offered opportunity to the accused to have their objections recorded.

12. All the appellants during their statements under section 342, Cr.P.C. denied the prosecution case as a whole. They also denied the recovery of alleged amount at their instance and pleaded innocence. While answering to the questions about their having been identified, they stated that they had been shown to the witnesses before the identification parade. Each one of them made statement under section 340(2), Cr.P.C. on oath, wherein also they took up the stand that they had been falsely involved in the case.

13. Except Shaukat Ali appellant who according to Ashiq Ali S.I. was arrested on 26‑7‑1986, all others were in police custody prior to that. The S.I. (P.W.12) who disclosed that fact, however, did not explain as to since how long they were in police custody prior to 26‑7‑1986. According to him they were sent to jail on 27‑7‑1986. He also admitted that he had not told the accused to keep their faces muffled as they were to be put to identification parade. The identification parade was held on 21‑8‑1986, i.e. more than three weeks after they had remained in jail. Sh. Muhammad Mahmud complainant P.W.5 admitted that he had been told by Shaukat Hayat Inspector 10‑12 days after the occurrence that the accused in the case had been arrested, which also gives an inkling that the accused had been taken into custody by the police prior to 26‑7‑1986. None of the witnesses stated anything about the part played by any of the appellants during the occurrence, so much so that they were not able to say even the fact as to which one of the appellants had lifted the amount lying there. In the circumstances, the intrinsic value of evidence of the identification parade diminishes to great extent, for, the possibility of the appellants having been shown to the witnesses prior to the identification parade, as alleged by them, cannot be ruled out entirely. Still another important aspect in this regard is that according to F.I.R. four persons had participated in the occurrence. Even in the improved version given by the witnesses at the trial, the fifth one had remained standing outside the bank and had not done anything in aid of the occurrence. The fifth one cannot be singled out of the five appellants from anything appearing on record. In fact, it cannot be done by any imagination even. This fact further makes the value of the identification parade of much less consequence. The failure of the Magistrate to provide opportunity to the accused to have their objections recorded before the identification parade, is another disability of the evidence of identification of the appellants. In the circumstances, we are of the view that conviction of the appellants cannot be maintained on the basis of the so‑called identification parade.

14. Statements of only two witnesses have been recorded about the recovery of different weapons at the instance of the five appellants. Both of them are police officials. The only public witness who according to these witnesses had also witnessed the recovery proceedings, has been given up as unnecessary. The two witnesses during cross‑examination admitted that some other persons had also gathered at the place of recoveries but none of them was asked either to witness the recoveries or attest the memos. prepared in regard thereto. The statements of the two police officials, one of whom had registered the case and had investigated the whole case, do not inspire sufficient confidence to hold that the recoveries pertaining to the money were‑‑genuine. In the circumstances, we are of the view that it would be unsafe to maintain conviction of the appellants on this piece of evidence. The police official who had investigated this case does riot seem to have made any effort to trace the car used in the crime, although the number of the same is also mentioned in the F.I.R. If it was a car of fake number, the Investigating Officer should have said something about it and if the number of the car was genuine, there should have been no difficulty to locate that. Thus, another important link of the crime has not been attended to make the case a success.

15. Another strange aspect, which attracted our attention about manner of prosecution of the accused in this case is that although evidence was led that .12 bore gun was recovered from Shaukat Ali appellant and evidence in the form of opinion of the Expert from the Fornesic Science Laboratory was also tendered in evidence, which showed that the recovered gun bore No. 11633, which number has been given of the gun taken away by the accused from the Bank as per F.I.R. yet neither the complainant nor the other Bank employee, i.e. Muhammad Ali Cashier was examined to state that the gun belonged to the Bank and was the same which had been taken away by the culprits. However, ever the opinion of the Expert of the Forensic Science Laboratory be considered to be sufficient corroboration of the fact that the gun was the same which had been taken away by the culprits from the Bank 'on the day of occurrence during commission of dacoity, evidence still will be required to connect Shaukat Ali appellant with the possession of that gun. In this regard, two persons made statements at the trial. One, is Imtiaz Ahmad P.W.9 and the other is Ashiq Ali, S.I. P.W.12. It appears from the cross‑examination of Imtiaz Ahmad that he did not belong to the place nearby the place wherefrom the recovery was effected. He rather admitted that he was neither a Lumberdar nor a member of any social organization, and that some other persons had arrived at the spot when the recovery proceedings were being conducted

16. Leaving aside the fact that the statement of Imtiaz Ahmad does not inspire confidence, the other fact which negates the, statements of these two witnesses, is that Ghulam Sarwar, Inspector, C.I.A. under whose supervision, according to Ashiq Ali, S.1 P.W.12, the raid was conducted and Shaukat Ali appellant was arrested alongwith .12 bore gun, did not state anything in this regard while appearing as P.W.2..(He had by that time been promoted as Deputy Superintendent of Police). All, he stated, was that he had arrested Ibrar Hussain (acquitted accused) under section 54 of the Code of Criminal Procedure and had recovered a motorcycle from him pertaining to some other case. The prosecution did not examine him on this point. Nothing is mentioned about his presence in the memo. of recovery as well. Since the raid was conducted under his supervision and the recovery was effected when he was heading the police party, he should have been examined by the prosecution on this point. It would have been a different matter if he had not been produced at the trial, but since he was 1 examined as a prosecution witness, his having not stated anything in this regard, makes the testimonies of the two witnesses, i.e. P.W.9 and P.W.12 doubtful. For all the reasons enumerated above, we are of the view that the prosecution has failed to prove the case against the appellants. The appeals filed by the appellants are, therefore, allowed and they are acquitted. SA./M.1100/L Appeal accepted.