1. Khanzada Mir (27) son of Khan Mir, resident of Pakistan Kili in Charsadda Tehsil, Nasar Khan (30/35) son of Zar Khan, resident of Hassan Khel, and Fazal-e-Rabbi (27/28) son of, Abad Khan of village Sheikhoo, were tried for offences under sections 392 and 411, Pakistan Penal Code. Khanzada Mir and Nasar Khan were eventually convicted under section 392, Pakistan Penal Code, and were sentenced to undergo rigorous imprisonment for five years each and also to pay a fine of Rs. 10,000 or in default of the payment of fine, to undergo rigorous imprisonment for a further period of six months each, while Fazal-e-Rabi was acquitted of the charges against him under section 245 of the Code of Criminal Procedure. The judgment was delivered by a Magistrate First Class, Peshawar, with powers under section 30 of the Code of Criminal Procedure, on 9th October, 1977.
2. Two appeals have been preferred, one by Khanzada Mir through his counsel, and the other by Nasar Khan through the Jail authorities. By this judgment, I propose to dispose of both the appeals.
3. The facts of the case for the prosecution were briefly these: On 24April, 1977, at about 9-30 a.m. Rabat Khan complainant was standing at Pabbi Bus stand, with six passengers sitting in the Suzuki Car No. P R C 1679 which he was plying on hire. In the meanwhile, three accused, and one other person who is still absconding; boarded the Suzuki Car.
4. All the passengers desired to go to village Dog-Basud. When the Suzuki reached the said village, four women and 2 boys alighted from the Suzuki, while four persons, namely, the three accused tried by the Court and the absconding accused, asked the driver to take them to village Wazirgarhi.
5. The driver agreed. When the Car reached near the said village, they came across a cartman from whom they inquired about one Awal Khan to whom the accused wanted to see. He told them that Awal Khan was in the Maira and with that he also boarded the Suzuki. The driver proceeded for ath few paces and then refused to proceed further. Upon his refusal, one of the two accused persons who were sitting in the front seat took the steering and pushed the driver to the backside and then started driving the car. Thereafter, all the four passengers in the Suzuki started scuffing with the driver in consequence of which the latter jumped down. The aforesaid four persons then took away the Suzuki.
6. Rahat Khan rushed to village Pabbi to inform his relatives of the incident. After informing them, he proceeded to Police Station, Pabbi, to report the occurrence. He was, however, told by the Police Staff of that Police Station that since the place of occurrence was situated within the limits of police Station, Umar, he should report the matter there. Thereupon, he proceeded to that police station. In the meanwhile, Sikandar Khan, Madad Moharrir, police station, Pabbi, informed Waris Khan, Station House Officer, Police Station, Saddar, on telephone that the culprits were taking away the Suzuki to Peshawar.
7. The First Information Report, Exh. P. A., was recorded by Abdul Wasih Khan, Station House Officer, Police Station, Umbar, P. W. 8 to the dictation of Rabat Khan. After the report was recorded, it was read over to the latter who signed it in token of its correctness. The S. I. Then took into possession, cheddar P. 1, produced by the complainant and said to have been left by one of the accused persons. It was taken into possession vide Memo. Exh. P. C. The S. I. Then proceeded to the spot and prepared the site plan Exh. P. E with all the notes thereon.
8. As indicated already, the Station House Officer, Police Station, Saddar namely, Waris Khan P. W. 1, received a telephonic message from Pabbi, Police Station, soon after the occurrence that the culprits were taking away the Suzuki Car to Peshawar. On receipt of this information. Waris Khan arranged a police party headed by him of which F. C. Mohammad Yousaf P. W. 2 was also a member, and proceeded to a place called Kachori. Leaving Hassan Khan Head Constable, Mohammad Yousaf, Khudad and Habib Gut on Phandu road crossing to hold the pickets so as to prevent the culprits from making good their escape, the S. I along with Mr. Pervez A.S.I. Proceeded to Mirza Garhi leaving the A.S.I. There, Waris Khan returned to the place where the Police party had been left to hold the pickets. As soon as he reached there, a Suzuki which was no other than the one snatched away from the complainant, appeared there. The Police party started firing in order to stop it, and succeeded in stopping which was then being driven by Khanzad Mir, While Nasar Khan was sitting with him in the front seat. The S.I. Took the car into possession vide Memo Exh. P. B and arrested the two accused persons and then informed the police, Police Station. Urmar, all about it. Abdul Wasih Khan, Station House Officer, Police Station, Urmar, rushed to Police Station Saddar, on receipt of this information. The case was investigated by Abdul Wasih Khan, S. I.
9. On 29th of April, 1977, the police produced Khanzada Mir and Nasar Khan before Mr. Abdul Waheed, E. A. C., Nowshera, with an application Exh. P. C. 1 for recording their confessional statements.
10. Khanzada Mir refused to make such a statement while Nasar Khan made a confession as contained in Exh. P. C. On 30April, 1977, on the application Exh. P. D., submitted by the local Police, Haji Gut Ahmad, Naib Tehsildar, Nowshera P. W. 7, conducted an identification parade of Khanzada Mir and Nasar Khan accused, and Rabat Khan complainant identified them in the said parade. The proceedings in respect of the parade are contained in Exh. P.E.1.
11. Fazal-e-Rabbi and Rehman Gut accused absconded after the occurrence. Warrants under section 2.04, Criminal Procedure Code, were issued against them and a written proclamation under section 87 of the same Code was published. Mr: Fazal-e-Rabbi was later on arrested while Rehman Gut does not seem to have been apprehended so far. The three accused arrested by the police were then challaned to Court.
12. The prosecution examined as many as nine witnesses to support its case. The accused, in their defence, alleged that they bad been falsely implicated in the case. Khanzada Mir and Fazal-e-th Rabbi accused produced two witnesses, namely, Amanullah D. W. 1, and Zar Gut D. W. 2, in defence while the third accused did not produce any evidence in defence.
13. The prosecution, in support of the case, had relied upon the following pieces of evidence:-
(1) Eye-witness account furnished by Rabat Khan complainant.
(2) Recovery of Suzuki.
(3) Confession.
(4) Identification parade.
14. On behalf of Khanzada Mir appellant, a number of points were raised before me. The first point raised refers to the confession by Nasar Khan accused as recorded by Mr. Abdul Waheed, Magistrate First Class, Nowshera. In the first place it was said that the confession was irrelevant because of its having been forced from the mind of the accused making it by the torture of fear. In the second place it was said that the confession cannot be taken as evidence against other accused persons under section 30 of the Evidence Act for the reason that the confessing accused did not implicate himself to the extent he implicated his co-accused. In the last place it was said that the confession could not be taken into consideration as against Khanzada Mir appellant for reason of its having not been put to him at the time of his statement under section 342, of the bode of Criminal Procedure.
15. It is true that a confession forced from the mind by torture of fear having reference to the charge against the accused person and proceeding from a person in authority, is irrelevant in a criminal proceeding. But it is also true that circumstances must exist to show that the confession was made by torture of fear and that it was not voluntary. It is well settled by authority that the onus of proving that a confession is irrelevant by reason of its having been obtained by inducement, threat, or promise, is on the accused person. The mere fact that a confession has been retracted, as is the position in the present case, would not necessarily show that the confession was not voluntary. The word used in respect of the confession, means a confession not caused, by induce--ment, threat, or promise. It need hardly be said that a confession, which is voluntary is admissible in evidence even if it be false. In the present case, no circumstances have been shown to exist to draw an inference that the confession was the result of some inducement, threat, or promise proceeding from a person in authority, and for that matter it was not a voluntary one. A bald statement of Nasar Khan accused, unsupported by any other evidence or circumstance, that he made confession under the duress of police, would not suffice to hold in his favour. As against this statement is the evidence given by Mr. Abdul Waheed, Magistrate First Class, which clearly suggests that the maker of confession was given a reasonable opportunity to think over the matter and all the legal formalities were observed, before his confession was reduced to writing. There is yet another fact which would also lend support to the factum of the confession being voluntary. In this connection, reference may be made to the statement of the said Magistrate. It is in his statement, and indeed there is nothing on the record to suggest the contrary, that both Khanzada Mir and Nasar Khan accused were produced before him together for the purpose of making confessional statements. Nasar Khan proceeded to make a confession while Khanzada Mir refused to do so. Both of them were produced by the police and had there been a fear of torture at the hands of Police, Khanzada Mir would have also, in all probability, fallen a prey to it and would have not refused to make a confession. On considera--tion of all these facts and circumstances, I am constrained to hold that the confession made in this case was voluntary and as such was admissible regardless of the fact whether it was true or false.
16. Turning now to the second submission, it may at the outset be stated that a confession cannot be taken into consideration against the co-accused unless the confessing prisoner implicates himself in the commission of the offence charged with, substantially to the same extent as he implicates the co-prisoner who is being jointly tried with him and against whom his statement is sought to be given in evidence. To use a popular phrase "the confessing prisoner must tar himself and- the person or persons he implicates, with one and the same brush". In other words, exculpatory or explanatory statement are inadmissible as they cannot be said to affect their makers and an admission which falls short of a confession is admissible only against its maker and not against a co-accused. The fact of the matter is that the law contemplates that statements which inculpate the maker more than, or equally with, others can afford satisfactory guarantee of their truth. This rule, however, cannot be invoked in the case before me for the short and good reason that an examina--tion of the confession would show that it inculpates the maker equally with, if not more than, his co-accused. There is thus no merit in the argument that the confession was exculpatory and on that score, it could not .Be taken into consideration against the co-accused.
17. The submission that the confession, even it be admissible, is not evidence against Khanzada Mir appellant, and cannot be taken into consideration against him, by reason of its having not been put to him at the time of his statement under section 342 of the Code of Criminal Procedure, appears to he tenable. This section is based on the principle involved in the maxim audi alteram parten, namely, that no one should be condemned unheard and is designed to secure that the Court, by the frame of its questions, performs a double function, firstly of communicating to the accused to the full extent, that may be necessary in each particular case what is alleged against him in the pro--secution evidence, and secondly of ascertaining from him what explanation or defence he wishes to put forward in respect thereof. Although the evidentiary value of a retracted confession against the co-accused is considerably less and under the law it cannot be used against the co-accused, nevertheless reference can be made to the confessional statement involving co-accused where other evidence proves the complicity and the guilt of co-accused. It has also to be borne in mind that where a retracted confession stands unrebutted, and there is nothing to show that the accused had any reason for naming other persons falsely, and his story fits in exactly with the facts known or proved and is corroborated sufficiently by material evidence against the co-accused, the confession would be a piece of evidence against the co-accused. In this case as will be made clear in the subsequent discussions, the confessor had not been shown having any reason for naming the accused falsely and the story contained in the confession is corroborated sufficiently by material evidence in the form of the testimony of the complainant and the recovery of Suzuki. In this view of the matter, there can be no doubt that the confession was piece of evidence against Khanzada Mir appellant as well. Since it was a circum--stance, rather a very strong circumstance, appearing in the evidence against co-accused, it ought to have been put to the appellant Khanzada Mir for the purpose of enabling him to explain it; more so when it was bound to influence, and did actually influence, the mind of the trial Court in arriving at the conclusion adverse to the accused. This fact undoubtedly caused prejudice to him. It may be observed that the mere non-compliance with the provisions of section 342 of the Code of Criminal Procedure, in regard to the retracted confession of co-accused, would not be sufficient for quashing conviction because the confession having reference to Khanzada Mir appellant can be ruled out of consideration and in that event, it would not amount to failure of justice. Although the learned counsel for the appellant did not cite any authority as to the legal effect of this defect, I feel no difficulty in holding, having regard to the letter and spirit of Section 342 of the Code of Criminal Procedure, and the principle on which the section is based, that the confession made by Nasar Khan accused can neither be used, nor can it be taken into consideration, against his co-accused Khanzada Mir.
18. The second point taken on behalf of the appellant was that the proceed--ings by way of identification parade were meaningless in that the identifica--tion parade was held on 30April, 1977, whereas the complainant who is said to have identified the two appellants had, on 24th of April, 1977, seen them at Police Station, Saddar, soon after the Suzuki was recovered. Support for thisth fact was sought from the statement in Court of Rahat Khan complain--ant wherein he said that "we then came to Police Station Saddar, and I saw the Suzuki car in question there. I also saw accused Nasar and Khanzada Mir in the custody of Police in Police Station, Saddar". The learned counsel appearing on behalf of the State before me did not contest this position an frankly conceded that in view of the statement so mad: by the complainant himself, the identification parade had lost all its value.
19. The position that emerges from the discussion given above is that the confession could not be taken into consideration against Khanzada Mir appel--lant while the evidence having reference to identification parade had no evidence against him becomes practically confined to the testimony of Rahat Khan P. W. And the recovery. The complainant, it may be stated, supported the prosecution case in all its material particulars. The recovery of Suzuki from the actual physical possession of the appellants has been supported by S.I. Waris Khan (P. W. 1) and Foot Constable Mohammad Yousaf (P. W. 2) The learned counsel for the appellant questioned the testimony of Rahat Khan on the grounds, firstly that he being the complainant was an interested witness and as such not worthy of reliance, and secondly that in his statement before the trial Court, he made material improvements upon the statement of fact contained in the First Information Report. I find myself wholly unable to agree with this contention. It is well settled that the mere fact of a witness being a complainant in a case or being victim of the crime, does not make him an interested witness in legal sense. The main consideration in such a situa--tion would be whether be had motive for falsely implicating the accused. It may be observed that the appellants were not even knewn to Rahat Khan complainant, before the present occurrence. It has not been alleged, much less has it been proved, that the complainant did have a motive for falsely implica--ting the accused. No such suggestion either was made to the complainant in his cross-examination. It was, therefore incorrect to suggest that the complainant was an interested witness. As regards the improvements alleged to have been made by him in his statement in Court, I am not prepared to subscribe to the view that they justified the rejection of the complainant's testimony straightaway, firstly because the improvements referred to were of minor nature and quite insignificant in the circumstances of the case, and secondly because the rule of law, as laid down in PLD 1963 Kar.
20. 805, is that where a witness improves his version to strengthen prosecution case, the statement subsequently made by him should not be relied upon., Thus the improving of the version subsequently cannot by itself justify a Court of law to disregard the merit of the version earlier given by a witness. I have carefully gone through the statement of the complainant and other evidence available on the record of the case more than once and find that the improvements said to have been made by him were of minor nature and that he was a straightforward person and his statement contains nothing but truth. It also fits in with the circumstances of the case.
21. Reverting now to the recovery, it may be stated that no doubt, both the recovery witnesses, namely, S. I. Waris Khan and F. C. Mohammad Yousaf, were police officials, but that fact alone, in the circumstances in which, and the speed with which, they had to rush to hold the pockets, did not leave them with any time to procure non-official witnesses from the locality. Their state ments, to say the least, have no material discrepancies therein and are also consistent and fit in with the circumstances of the case. The statements also ring true and there is absolutely no reason to discard them merely because they come out of the mouths of police officials.
22. Learned counsel for Khanzada Mir also attempted to argue that even according to the statement of the complainant himself, a cartman met them in the way from whom they inquired about one Awal Khan and he also accompanied them for some distance, bus even then the prosecution did not produce the cartman. It was argued by him that non-production of the cartman suggests that had he been produced in Court he would have not supported the prosecution case and this fact alone was sufficient to cast a grave doubt on the prosecution case. I regret my inability to accept this proposition with regard to the present case for the reasons, firstly that the cartman was not even known to the complainant and the latter was, therefore, not in a position to supply particulars about him to the police, and secondly that the prosecution was not bound to produce him as its witness, There is no doubt that as a general rule, the prosecutor is bound to call all eye-witnesses who are mentioned in the First Information Report unless he has reasons to believe that the witness if called would not speak the truth, or is unnecessary or is accomplice himself, and the failure to examine such witnesses or witness who are able to give important information in the case would justify the Court to draw an inference adverse to the prosecution but that is not the case before me. The cartman, as stated already, was not even known to the complainant. Apart from this, he was simply a witness of an incidental matter that had nothing to do with the actual occurrence. It is well established that it is no part of the duty of prosecution to prove all incidental matters that are men--tioned by a witness in his deposition. If the matter appears to the defence to be material and it is intended to contradict a witness of that matter, it is the duty of the defence to produce evidence to rebut the statement of the witness. It, therefore, follows that the non-production of the cartman have no justifica--tion for me to draw an inference adverse to the prosecution. The learned counsel also referred to the defence evidence, which according to him, had not been taken notice of by the trial Court. The defence evidence in my opinion, is worthless and stands negatived by a reliable evidence produced by the prosecution. The trial Court was, therefore, perfectly justified in discarding the same.
23. With one more argument I must deal, which was pressed before me on more occasions than one during the arguments by the learned counsel who appeared for Khanzada Mir appellant. It was said that the trial Court was in error in convicting the two appellants on the same evidence on which it proceeded to acquit the third accused, namely. Fazal-e-Rabbi. It was argued that the evidence of the complainant and the confession made by Nasar Khan accused were disbelieved by the trial Court regarding the role assigned to the acquitted accused, and that it was not open to the trial Court to rely on the same evidence against another co-accused. According to the learned counsel, the credibility of witnesses is not divisible to be believed against one and disbelieved against another co-accused. On examination of the evidence, however, it appears that this grievance is based on a misconception. The evidence against the acquitted accused consisted of the statement of the complainant and the confession of Nasar Khan accused and this evidence also was never found to be false by the trial Court. It was, however, not considered sufficient for the conviction of the acquitted accused. The evidence against Khanzada Mir appellant was not confined to the statement of the complainant but in addition to the same. The evidence of the recovery of Suzuki was also available against him. In fact, the evidence of recovery was a strong piece of evidence inasmuch as the appellants were captured with the Suzuki they were taking away. In these circumstances, the argument that the evidence against the appellants and the acquitted accused was one and the same, to use a colloquialism, has the effect of putting the cart before the horse.
24. From the above discussion, I find that the evidence against the appellants is direct and reliable.
25. The eye-witnesses account furnished by the complainant is supported and corroborated by the recovery of the Suzuki from the appel--lants. The case against them, is therefore, proved beyond all reasonable doubt. It will not be out of place to point out here that the prosecution case against Nasar Khan appellant stands on a stronger footing in that it also finds support from the confession made by him which, as stated already, was voluntary and true. In the circumstances, the conviction of the appellants under section 392, Pakistan Penal Code, was well-founded. As regards the sentence, Mr. Ayub Khattak Advocate for Khanzada Mir appellant contended that it was very sever in the circumstances of the case. This contention, in my view, is wholly devoid of force. The case is of a highway robbery in a broad daylight and the sentence awarded cannot be said to be out of proportion to the gravity of the offence.
26. As a result of the above discussion, I maintain the conviction and sentence of both the accused- appellants and dismiss their appeals.
27. M. A. K.