' This judgment shall dispose of Criminal Appeal No,619 of 2004 (Muhammad Saleem v. The State), and Criminal Appeal No,239 of 2004 (Mushtaq Hussain alias Mushtaqi v. The State), as the same arise out of the same judgment dated 9-2-2004 passed by the learned Special Court No,III, Lahore, constituted under the Anti-Terrorism Act, 1997, whereby, having tried the appellants in the case registered vide F.I.R. No,20 of 2003, dated 22-1-2003 under section 392, P.P.C. Read with section 7(h) of the Anti-Terrorism Act, 1997 and section 7 of the Surrender of Illicit Arms Act, 1991, Police Station Civil Lines Lahore, they were convicted and sentenced as under:--
(1) Under section 7(i) of the Anti-Terrorism Act, 1997.--- to four years' R.I. Each.
(2) Under section 392, P.P.C.--- to seven years' R.I. Each with a fine of Rs,50,000 each in default whereof to further undergo R.I. For six months' each.
(3) Under section 353, P.P.C.--- to a fine of Rs,1,000 each in default whereof to undergo R.I. For one week each.
(4) Benefit of section 382-B, Cr.P.C. Was extended to them and the sentences were directed to run concurrently.
2. The prosecution story, as unfolded through F.I.R. Registered on the statement of the complainant, briefly stated is that on 22-1-2003, the complainant Sher Ali Bhatti along with his employee Muhammad Riaz came to Standard Chartered Bank, Garden Town, Lahore, and got an amount of Rs,6,90,000. He put Rs,six lacs in a bag and the remaining Rs,90,000 were given by him to his employee Muhammad Riaz. They proceeded for Citibank, Alfalah Building Branch, The Mall, Lahore in their Car No,LOY-989. When they reached near Alhamra Art Council at 11-30 a.m., both the accused stopped their Motorcycle No,LRB-753 in front of their car forcing them to stop their car on pistol point, both the accused snatched the said amount from the complainant and his employee Muhammad Riaz and ran away on their motorcycle. Meanwhile, some police officials in an official vehicle reached there. The complainant informed them about the occurrence. The police chased the accused persons whereupon the accused persons started firing on the police party. On reaching Chowk Faisal, the police gave a push of official vehicle to the motorcycle of the accused persons whereby both the accused persons fell down along with their motorcycle. However, Muhammad Saleem accused succeeded to run away making firing along with Rs,90,000 from the spot while his companion Mushtaq Hussain alias Mushtaqi was caught hold of by the police and Rs,six lacs were recovered from him along with a .30 bore pistol and live bullets. The motorcycle of the accused persons was also taken into possession by the police. Mushtaq Hussain accused was injured due to fall on the ground from his motorcycle, as the motorcycle was given a push by the vehicle of the police. Later on, Muhammad Saleem accused was arrested and Rs,40,000 were recovered from him besides a .30 bore pistol and live bullets. Separate cases for unlicensed arms were got registered against both the accused persons under the Arms Ordinance.
3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 15 witnesses.
4, The accused, when examined under section 342, Cr.P.C. Denied the prosecution case and attributed involvement to false implication and claimed trial.
5. Syed Baqir Hussain Naqvi, learned counsel for the appellant Muhammad Saleem (in Criminal Appeal No,619 of 2004), in support of this appeal submitted that he has falsely been dragged in this case; that the appellant was arrested on 11-4-2003 by Basharat Ali, Constable (P.W.8), police party was headed by Amer Ali Malik, A.S.-I., .30 bore pistol along with five live bullets were also recovered from his possession, which were taken into possession vide memo. Exh.P.W.8/1 which was confirmed by the said A.S.-I., Amer Malik (P.W.14) and that the appellant has to be produced before the nearest Magistrate as the offence under section 13 of the Arms Ordinance, 1965 was bailable but the same was never done which is a legal flaw in this case. Explaining it learned counsel has referred to the statement of Muhammad Aslam, S.-I. (P.W.13), according to which the appellant was arrested on 19-4-2003 which was confirmed by P.W.9 Muhammad Siddique, Constable, he also got recovered Rs,40, 000 on his pointation and on the above facts, it is proved that the arrest of the appellant was malicious one.
' While advancing his submissions, learned counsel for the said appellant Muhammad Saleem further submits that the complainant, in his examination-in-chief, never stated that he saw Muhammad Saleem appellant running away from the spot, neither gave description of the clothes of the appellant nor colour of the said clothes which the appellant was wearing at the said time; that as far as this appellant is concerned, no identification parade was held in this case which could lead his identification either by the complainant or his employee i,e, P.W.9 and P.W.10; that the complainant submitted in his cross-examination that he was not sure as to who took his bag from the car; that according to the statement of the complainant, he was told the name of this appellant by Inspector Naseemul Hayee; that there are material contradictions amongst the statements of the prosecution witnesses; that the P.Ws. Have also not mentioned as to who was driving the motorcycle at the time of the commission of the offence; that the prosecution has failed to prove its case against the appellant beyond an iota of doubt; that the impugned judgment is not sustainable in law and the same is liable to be set aside by this Court resulting in acquittal of the appellant.
' Rana Habibur Rehman, Advocate for appellant Mushtaq Hussain alias Mushtaqi (in Criminal Appeal No,239 of 2004), after having adopted arguments of the learned counsel for the appellant Muhammad Saleem and while canvassing acquittal of appellant Mushtaq Hussain, added that the innocence of the said appellant is manifest from the fact that according to the doctor who had medically examined the appellant, was told by the Constable brought him for the purpose, that this appellant received injuries in a road accident but the said Constable was never produced before the learned trial Court; that the said doctor had given the duration of the said injuries of 20/22 hours which comes to 3 a.m.; that according to the statement of P.W.3 Ahmad Din, he was given the parcel of .30 bore pistol on 17-2-2003 while the cash amount and the motorcycle were never handed over to him; that according to the complainant, F.I.R. Was recorded at Police Station Civil Lines but if the tenor of the F.I..R. Is seen, the complaint was recorded at Faisal Chowk; that the "Karwai police" does not show as to which Police Officer was accompanying Inspector Naseemul Hayee; that according to the statement of Amanullah, S.-I. (P.W.15) he never visited Police Station, Civil Lines on the day of occurrence; that there are material contradictions in the statements of P.W.3 Muhammad Arshad and P.W.10 Sher Ali Bhatti complainant regarding the mode of occurrence; that according to P.W.11 Muhammad Riaz, they were intercepted near the Assembly Hall while P.W.10 complainant deposed that they were stopped near Alhamra Hall; that according to P.W.11 amount of rupees six lac was snatched by appellant Mushtaq and rupees ninety thousand by appellant Saleem while the complainant uttered that when he was stopped by the accused, he left the car and crossed the road; that the prosecution evidence is not trustworthy and that since the prosecution has failed to prove its case against this appellant as well, therefore, he deserves acquittal by this Court.
6. Learned counsel for the State while defending the impugned judgment of conviction contends that both the appellants were named in the F.I.R.; that the presence of the eye-witnesses at the spot stands established beyond any reasonable doubt that Mushtaq appellant was caught red- handed at the spot; that the looted amount of rupees six lac, motorcycle, .30 bore pistol along with live bullets were recovered from him at the spot which connects him with the commission of the offence; that the prosecution evidence is disinterested and trustworthy; that the defence has failed to cause any dent to the prosecution case; the offence is a heinous one; that it is a well-reasoned judgment not warranting any interference by this Court and that both the appeals are liable to be dismissed.
' Syed Ameer Ali, Advocate for the complainant, while defending the impugned judgment of conviction submits that both the appellants are of desperate character; that they are involved in ten cases of similar nature; that appellant Mushtaq was caught red-handed and looted amount was recovered from him; that the prosecution has succeeded in proving its case against both the appellants; that since the appellants are convicts of a heinous offence, therefore, they do not deserve any leniency by this Court and both the appeals are liable to be dismissed.
7. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.
8. It is a case in which appellant Mushtaq Hussain was arrested at the spot, looted amount of rupees six lac, motorcycle, .30 bore pistol along with live bullets were recovered from him there and then. It was only fortunate of the complainant that some Police Officers were passing nearby who attracted to his hue and cry, the appellants were followed, they fired upon the Police Officers which fires luckily went amiss, their motorcycle struck with the police vehicle, they fell down and even received injuries due to the said fall, Saleem appellant slipped away from the spot while Mushtaq was apprehended. Normally, such-like cases went untraced, the culprits ran away having robbed the innocent citizens A and remained unpunished. If the complainant was not helped by the Police Officers, who reached at the spot and made havoc efforts to apprehend the accused and even after having confronted risk to their lives who followed the dacoits, then there were chances that the culprits must have succeeded in slipping away from the spot and this case might have faced the same situation like untraced cases.
9. This is a case in which quality of the evidence has to be seen and not the quantity and the same, is in line with the law laid down by the august Supreme Court of Pakistan in the case of Allah Bakhsh v. Shammi PLD 1980 SC 225.
10. The prosecution has produced four eye-witnesses of the occurrence, namely, first is Sher Ali Bhatti P.W.10, second is his employee Muhammad Riaz P.W.11. Both of them are the persons who were victims of the offence and were robbed by the appellants. Their statements are the best evidence to connect the appellants with the alleged commission of the offence. Third eye-witness is Nasimul Hayee, Inspector who entered the witness-box as P.W.12 while fourth eyewitness of the occurrence is Muhammad Arshad who appeared as P.W.3. All the above four eye-witnesses have fully corroborated the statements of each other and their testimony could not shake despite lengthy cross-examination and they remained trustworthy so far as material particulars of the case are concerned. Sher Ali Bhatti complainant of the case, while appearing before the learned trial Court, during his cross-examination, stated as under:-- "... I can certainly state that these are the two persons who had committed the crime with me present in Court..."
' Muhammad Arshad P.W.3 in his cross-examination also deposed as under:-- "... He himself seen both the accused persons committing crime..."
' Both, complainant and his employee after coming out from the Bank, were taking money of Rs,6,90,000 in complainant's car when they were intercepted by the present appellants on gun- point. As the appellants were armed with fire-arms, therefore, due to fear of death, they stopped the car. Thereafter, the money in question was taken away by the present appellants and as stated above it was due to their luck that one appellant was apprehended at the spot while the other after few days of the occurrence due to the efforts of the police officials who were passing nearby.
Looted money from both the appellants was also recovered which fully connect them with the commission of the offence.
11. After having caught red-handed by the police though having resisted by the appellants, it was Mushtaq appellant who gave the name of his co-accused Saleem appellant. The fact is also proved that on the same day Mushtaq was medically examined, injuries were found on his person.
Opinion of the doctor was that the Constable, who brought him to the hospital, had told him that the said person had met a road accident. Merely on the basis of this statement of the doctor, as much stress was laid by the learned counsel for the appellants on this point, the prosecution case cannot be thrown in the waste basket rather it strengthens the prosecution because on the day of occurrence when the police vehicle hit the motorcycle, the appellants had fallen on the ground and naturally both of them had received injuries and the injuries in question were the result of the said fall. All the eye-witnesses, including the Police Officers, are independent, natural, uninterested witnesses having no background of enmity against the present appellants. Not even a single suggestion was put to the said eye-witnesses as to why they were so deposing against the appellants. Therefore, the question of false implication or substitution is repelled. The factors i,e, apprehension of one appellant at the spot who was caught red-handed, recovery of the looted money, motorcycle and recovery of pistol .30 bore from his possession coupled with recovery of looted money from the other appellant would lead this Court to an irresistible conclusion that the case was fully proved against the appellants and the learned trial Court has rightly convicted them for the offence committed by them. According to the record he was handed over to the Investigating Officer of the present case by the police of Police Station Civil Lines who produced him before the learned Court for remand etc. 11-A. As has already been held above, the minor discrepancies in the statements of the witnesses those are natural one. The Court has to see the intrinsic value of the statements of the witnesses. It is settled by now that the approach of the Court should be dynamic one notwithstanding any inefficiency or negligence on the part of the Investigating Agency and if the Court is satisfied that the statements made by the eye-witnesses are natural, unbias, disinterested one then minor technicalities and discrepancies can be ignored, as is in the present case. This is in line with the law laid down by the apex Court of the country reported in State through Advocate-General, Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1.
12. The Police Officer who had initially arrested Muhammad Saleem appellant and entered the witness-box to state that he arrested the appellant and recovered the pistol, was never cross- examined for the alleged inactions on his part, if any. Therefore contention of the learned counsel for Saleem appellant that when the said appellant was already under arrest and was later on arrested in the present case, then why he was not produced before any learned Magistrate for remand etc., has no, force. Much stress has been laid by the learned counsel for Muhammad Saleem appellant on non-holding of identification parade to his extent. It may be observed here that name of Saleem appellant was mentioned in the F.I.R. And he was also identified by the eye- witnesses in the learned trial Court. So, in these circumstances, there was no need for holding of identification parade. I am fortified by my view with the judgment of the august Supreme Court in Muhammad Afzal and another v. The State 1982 SCM R 129 and a judgment of a learned Division Bench of Sindh High Court, Karachi, reported in Muhammad Yusuf Zai v. The State PLD 1988 Kar.
539.
13. Even otherwise, the occurrence in this case took place on 22-1-2003, appellant Saleem was arrested on 11-4-2003 i,e, three months after the occurrence, he was declared proclaimed offender which is also a corroborative piece of evidence against the said appellant.
14. Having adjudged the case from every angle after having sifted grain from the chaff and having scrutinized the record, this Court is of the considered view that the prosecution has proved the case against both this beyond an iota of doubt to sustain their conviction. This Court finds no reason to interfere with the impugned judgment of conviction recorded by the learned Special Court constituted under the Anti-Terrorism Act, 1997. Resultantly, both appeals i,e, Criminal Appeal No,619 of 2004 (Muhammad Saleem v. The State) and Criminal Appeal No,239 of 2004 (Mushtaq Hussain alias Mushtaqi v. The State), having no merit, are hereby dismissed and the convictions and sentences recorded against the appellants are maintained in toto.