Z. A. CHANNA, J.-The two appellants were tried under the provi--sions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, for committing along with three other persons, an armed dacoity in the Khudadad Colony Branch, Karachi, of the Habib Bank Limited, in which a large sum of money, watches, a gun, a bandolier containing cartridges, etc., were robbed and each of them have been sentenced under section 396 read with section 397, P.P.C., to R.I. For 10 years.
2. The occurrence, which has given rise to the present appeal, took place on 5th March, 1975, at 1-00 p.m., while the First Information Report of the offence was lodged the same day at Brigade Police Station at 1-43 p.m. By Mr. Muffakir Alam, the Manager of the Bank. The prosecution case, shortly stated is, that on the day of the incident, Manager Muffakir Alam was working at his table in the Khudadad Colony Branch of the Habib Bank, when suddenly, at about 1-00 p.m., he saw a person grappling with the Bank's Chowkidar, Aseem Khan, and heard the report of afire-arm which evidently was aimed at the Chowkidar. In the meanwhile, a second person snatched the gun and the bandolier from Chowkidar. At the same time, a third person came up to Manager Muffakir Alam and aimed a sten-gun at him. Another miscreant, who was armed with a revolver, came to his table, broke his telephone instrument and took up the key of his car from the tray. The same person made him raise his hands, took search of his pockets and took Rs. 60 from his pockets. The same person then went to the cash box and removed from it currency notes of the value of Rs. 35,000 which he put in a black leather bag which be was carrying. There was also a fifth intruder who was standing near the counter of the Bank. Manager Muffakir Alam, Cashier Nazeer Ahmad, Second Officer Asif Rafiq, Chowkidar Aseem Khan, and a customer of the Bank, by name Karim--bhai, who was present at the time in the Bank, were then taken by the intruders to the strong room of the Bank and the Manager was asked to open the strong room and the safe, which was done. The intruder with the leather bag then took bundles of one rupee notes of the value of Rs. 1,000 from the safe and asked the Manager to open the lockers, but the latter showed his inability to do so on the ground that the keys of the lockers were with the customers. The intruders thereafter removed the watches of Asif Rafique, Aseem Khan and Karimbhai, and after bolting them up in the strong room left. Sometime after the departure of the intruders the Bank Manager and his companions were let out of the strong room by one Irshad who bad come in search of Karimbhai. As the Bank's telephone had been disconnected by the intruders, Manager Muffakir Alam went to the neighbouring premises of Asiymin Industries and contacted Brigade Police Station and his head office.
3. Within a short while of receipt of the telephonic message from Muffakir Alam, S.H.O. Brigade Police Station accompanied by the D.I.G. Police and some other police officers came to the Bank premises, S.H.O, Muhammad Ehsan took Muffakir Alam to the Brigade Police Station where his first information report was recorded. Thereafter, the S.H.O. Returned along with Manager Muffakir Alam to the Bank premises and inspected the same in the presence of mashirs Asif Rafiq and Aseem Khan. He found a live cartridge lying in the eastern corner of the main hall of the Bank, which he sealed. He also found spots of blood on the ground near the counter. The cash box of the Bank was found lying empty on the ground. The papers and the chairs in the Bank were lying in disarray. On the northern wall of the ball of the Bank he found a bullet mark in the window pane which was broken, Mashirnama of the scene of offence and recovery of the live cartridge was prepared by the S.H.O. He then recorded the statement of Chowkidar Aseem Khan and as the latter had an injury on his person, he sent him to the Jinnah Hospital for examination and treatment. The S.H.O. Thereafter recorded the statements of Asif Rafique, Nazir Hussain, Almas Khan, Karimbhai and Irshad Ali.
4. On the night intervening between the 23rd and 24th of March, 1975, at about mid-night time, S. I.
P. Maqbool Hussain of Gulberg arrested the two appellants from the Maidan of Block No. 20 of Federal 'B' Area, in the vicinity of house of Allama Rashid Turabi. It is alleged that from appellant Muhammad Siddique a bandolier containing 10 live cartridges and from appellant Zahid Naseem a sten-gun containing 7 bullets were secured. The recoveries were made in the presence of Mashirs Zafar Hussain and Agha Abdul Majeed. On interrogation, appellant Siddique is said to have taken S. I. P. Maqbool Hussain and the mashirs to a nearby Nala and produced a gun from a crevice in the Nala. The S. I. P. Then brought the two appellants to the Gulberg Police Station where he registered a case against them under the Arms Ordinance against them.
5. On 4th April, 1975, appellant Zahid Naseem took S. I. P. Syed Yadgar Hussain of Liaqatabad Police Station and mashirs, Haider and Khalil Ahmad, to the shop of Allah Rakha in a street in Preedy Quarters and at his instance Allah Rakha produced before the S. I. P. a sum of Rs. 3,000 and a watch which bad been deposited by appellant Zahid Naseem with him. The S. I. P. Sealed the watch and the money and prepared mashirnama. The watch was subsequently identified by P. W. Karimbhai as the one of which he was robbed in the Bank.
6. Earlier, on 27th March, 1975, appellant Muhammad Siddique was produced before Mr. Abdul Rashid, Additional City Magistrate, Karachi, for the recording of his confession. However, the confession was not recorded on that date, as the Magistrate was busy and it was ultimately recorded by him on 2nd April 1975.
7. On 5th April, 1975, Magistrate Abdul Rashid held an identification parade in which P. Ws. Muffakir Alam, Aseem Khan, Almas Khan, Asif Rafique, Nazir Hussain and Karimbhai, were successfully able to pick out the two appellants, who had been mixed up with 18 other persons.
8. It may be mentioned that two more of the alleged robbers, namely, Sher Afghan and Rehmat, had been arrested in pursuance of the process issued by the Court and produced before the Court on 4th June, 1975, but they managed to escape from the Court compound and are since then absconding. The 5th accused shown in the challan, namely, Anisur Rehman, has all along remained at large.
9. The injured Chowkidar, Aseem Khan, was examined by Dr. Miss Najma Begum at the Jinnah Hospital. She found that he had one lacerated wound on the occipital region, which was 1' x -- x muscle deep. No charring mark was found at the site of the injury.
10. Both the appellants, in their statements under section 342, Cr. P. C., have proclaimed their innocence. According to appellant Zabid Naseem, he was arrested from Lahore on 17th March, 1975, and brought from there by train to Karachi and it was there that he learns that he had been involved in the Habib Bank dacoity case. In regard to the identification test he has alleged that all the witnesses had beet allowed an opportunity to see him at the C I A. Office before the identification parade and he had so complained to the Magistrate at the time of parade. Similarly, appellant Muhammad Siddique has alleged that he was arrested by S. I. P. Yadgar Hussain from Peshawar from where he was first brought to Rawalpindi and then to the Mozang Police Station, Lahore, and later, on 19th March, 1975, he was brought by train to Karachi. In regard to the identification test, he has stated that at first the witnesses categorically stated that he was not one of the dacoits but on the insistence of the S. I. P. Brigade Police Station, who had shown hire to the witnesses before the identification test, they had picked him out in the test. As regards the confession, he stated that .The contents thereof are false and as a matter of fact he had made no confession whatsoever.
11. In defence, appellant Muhammad Siddique has examined three witnesses, namely, Nazir Ali, Wali Muhammad and Ghulam Murtaza. D. W. Nasir Ali Siddiqui, who claims to be running an automobile workshop at Model Town, Lahore, has stated that appellant Muhammad Siddique had been in his service for about 4 or 5 years, that in March, 1975, some police officers, who appeared to have come from Karachi, had come to his house in connection with the arrest of the son-in-law of appellant Muhammad Siddique, that on his contacting the local Police they expressed ignorance in regard to the purpose for which the Karachi Police had come, and that he had directed Wali Khan, the son---in-law, of appellant Muhammad Siddique, to accompany the two Police Officers. In cross-examination, the witness has admitted that appellant Muhammad Siddique was in fact not his servant but the servant of his mother-in-law. The evidence of D. W. Wali Muhammad, the son- in-law of appellant Muhammad Siddique, is that on 17th March, 1975, he was taken by some Police Officers from Lahore to Peshawar and from there to Landyar Bagh where the police arrested appellant Muhammad Siddique and he returned to Lahore. D. W. Ghulam Murtaza claims to be a resident of Landyar Bagh and a co-villager of appellant Muhammad Siddique. According to him appellant Muhammad Siddique was arrested by the Police in Landyar Bagh on the 17th or 18th March, 1975.
12. Appellant Zahid Naseem, in his defence, has examined Shahid Aziz, Syed Hasan Sultan, Fakhruddin and D.I.-G. Dilshad Najmuddin. D. W. Shahid Aziz is a brother of appellant Zahid Naseem, D. W. Fakhruddin is his father and Syed Hasan Sultan claims to be the owner of Mini Buses and has stated that appellant Zahid Naseem was working under him as a machanic. All 3 of them have testified that this appellant was arrested from Lahore on or about the 18th of March, 1975. D.I.-G.
Dilshad Najmuddin was examined in connection with a press conference, which the witness is said to have held at Lahore on 24th of March. 1975. The witness, however, stated that he did not recollect whether in the said conference he had stated that Rehmat and Zulfiqar (alias Zahid Naseem) had been arrested by the C.I.D. Police (Lahore) or that they were handed over to the Karachi Police. It may be mentioned here that appellant Zahid Naseem had, along with his statement, produced a cutting froth the issue of the daily Mashriq, Lahore, dated 25th of March, 1915, reporting a press conference allegedly held by D.I.-G. Dilshad Najmuddin regarding the arrest of the persons involved in the Bank dacoity case in Karachi.
13. The learned Special Judge has based the conviction of the two appellants on the following pieces of evidence : -
(a) Ocular evidence supported by the identification test in which the eye-witnesses had picked out both the appellants;
(b) recoveries made from and at the instance of the appellants ; and
(c) judicial confession made by appellant Muhammad Siddique.
14. It maybe mentioned here that neither Mr. Muhammad, Hay at Junejo, the learned counsel for appellant Zahid Naseem, nor Mr. Naqi Mirza, who appeared for appellant Muhammad Siddique, have disputed the fact that an armed dacoity did take place at the Khudadad Colony Branch of the Habib Bank, as stated in the F.I.R, in which cash, watches and a gun were taken away by the dacoits. They have only challenged the evidence involving the appellants in the dacoity. As regards the commission of the dacoity, there is the uncontroverted direct testimony of as many as four bank employees and one independent witness, namely Karimbhai, together with the strong corroborative evidence of S. I. P. Muhammad Ehsan, who went to the bank premises soon after the incident and saw the empty cash box, the blood stains at the bank counter, the bullet hole in a window pane of the bank and other signs indicative of the commission of a dacoity, including the finding by him in the bank premises of a live bullet, and finally the medical evidence regarding the injuries on Chowkidar Aseem Khan. There is additionally the testimony of P. W. Irshad Ali who had let out the bank employees and his master, Karimbhai, from the safe-vault of the bank, where they had been bolted in by the dacoits. These various pieces of evidence conclusively establish the fact that dacoity was committed from the Bank as stated in the F.I.R.
15. The main evidence against both the appellants is that of the 5 eye-witnesses, Mufakkir Alam, Nazir Hussain, Asif Rafiq, Asim Khan and Karimbhai. As already stated, Mufakkir Alam was the Bank Manager, Asim was the Bank Chowkidar and Karimbhai was a customer of the Bank, who was present when the dacoity was committed, while Nazir Hussain is the Bank Cashier and Asif Rafiq is the Second Officer of the Bank. The names of all these witnesses are given in the F.I.R., which was lodged within 43 minutes of the incident. The incident took place in broad daylight and the dacoits were in the Bank for sufficient time to en--able the eye-witnesses to see them properly and have proper opportunity of observing their features and distinguishing marks. In fact, the F. I. R. Contains the description of all the 5 dacoits. It is stated in the F. I. R. That one of the dacoits was of long stature, strongly built, and was wear--ing white bush-shirt and pant. He was armed with a sten gun. It is further mentioned in the F. I R. That the second dacoit was of similar body, medium stature, sallow complexion, medium black hair, small moustaches, was wearing white shirt and pant and was armed with a pistol. As regards the remaining 3 dacoits, they are described in the F. I. R. As of medium height, sallow complexion and medium body. All the 5 witnesses were examined by the learned Special Judge at the trial and each one of them testified that the two appellants are 2 of the dacoits who had committed the dacoity at the Bank. They were put to an identi--fication test by Magistrate Abdul Rashid on 5th April 1975, in which each one of them was successfully able to pick out both the appellants. The test was held with due formalities and not only the appellants were mixed with 18 other persons of somewhat similar appearance, but the appellants were given an opportunity of selecting any position in the litre which they desired and were also permitted to change their position in the line before each witness was called for the purposes of identification. It was suggested to the eye-witnesses that they were shown the appellants by the police before the identification test but they have strongly denied this allegation. There is no material whatsoever on the record to substantiate or lend support to this imputation.
16. The learned counsel for the defence have assailed the identifica--tion test on three grounds.
The first is that though both the appellants are stated to have been arrested on 24th March, 1975, the identification test was held 12 days later on 5th March, 1975, and no satisfactory explanation is given for this abnormal delay in the holding of the test. It is contended that it should be presumed that this delay must have been utilized for showing the appellants to the witnesses. We have already dealt with this allegation and have pointed out that the eye-witnesses have strongly repudiated the suggestion that the appellants were shown to them before the test. The witnesses are independent persons who were not likely to succumb to police pressure, influence or suggestion even if it had been used or given. Moreover, the explanation for the time lag between the arrest of the appellants and the holding of the identification test is quite apparent. Three of the decoits had still to be arrested. Further, the stolen property had to be recovered. The delay in the holding of the identification test thus has been fully accounted for and no presumption adverse to the prosecution can be drawn therefrom.
17. The second ground on which the identification test has been attacked is tl-at the witnesses who were put to the test were not sum--moned by the Magistrate holding the test, as should have been done, and in fact it is not known by whom or how they were brought to the Court room for the purposes of the test. The learned counsel for the appellants were, however, unable to cite any law or authority, requiring that witnesses to the test are required to be summoned by the Magistrate holding the test. Our experience is that invariably the Investigating Officer produces the witnesses who are to be put to the test, as he is fully acquainted with the addresses of the witnesses while the Magistrate is not. No doubt there is some discrepancy between the evidence of the witnesses as to whether they were sent for by the Police or the Court for the purposes of the identification test sad whether they went singly, in groups or altogether for the test, but we consider that these are minor contradictions, having little significance, and mainly occasioned by the long time lag elapsing between the holding of the test and the giving of their evidence in Court. According to complainant Mufakkir Alam, he was called for the test by the Brigade Police. Cashier Nazeer Hussain, on the other hand, has stated that he was summoned for the test by the Court while P. Ws. Asif Rafique, Aseem Khan and Karimbhai have stated that they were called for the test through a police Constable. It would be seen that except Nazeer Hussain all the other P. Ws. Have deposed that they were called for the test by or through the Police. As already sated, Nazeer's slightly contradictory statement on this point appears to have been due to loss of memory.
18. It was finally contended by Mr. Naqi Mirza that the respective places where the appellants and the witnesses ware made to sit before the test were so located drat the witnesses had to pas: the place where the appellants were made to sit and hence must have seen the appellants. In support of this contention the learned counsel submitted that it has been admitted by Magistrate Abdul Aziz that before the test, which was held at the back side of the Courts, the witnesses were made to sit in the front side of the Court room verandah while the accused were sitting in the back portion of the building, and though there are two walls in between the two places, the two appellants must have been brought by the front verandah and the Court room because there is no other inlet. The contention raised was that when the two appellants were brought through the front verandah of the Court, where the witnesses were sitting the latter must have seen the appellants. There is, however, no evidence to suggest that the appellants were brought to the Court after the witnesses had been made to sit in the front verandah. No question on this point has been asked from any witness or Police Officer. As such, it cannot be said that the witnesses must have had an opportunity of seeing the appellants much less have actually seen the appellants immediately before the holding of the test.
19. Very strong corroboration to the ocular evidence and the evi--dence of identification is provided by the circumstantial evidence of recoveries made from and at the instance of the appellants. S. I. P. Yadgar Hussain, to whom appellant Zahid Nasim was handed over after the latter's arrest, has testified that he interrogated this appellant on 4th April 1975. Whereupon the appellant took him to the shop of Allahrakha in Preedy Quarters and asked Allahrakha to return the 'Amanat which he had kept with him, whereupon Allahrakha went to his house, which is at the back of his shop, and brought 30 currency notes of 100 rupees each and a wrist watch, which he handed over to the S. I. P., who seized the same in the presence of Mashirs Haider Khan and Khalil Ahmed, and prepared the mashirnama, Exh. 14 A. Mashir Haider Khan, who is hotel-keeper, has fully supported S. 1. P. Yadgar Hussain on this point. However, the most important evidence on this point is of Allahrakha himself, who is a shopkeeper and whose age has been recorded by the learned Special Judge as 70 years. He has testified that on 7th March 1975, which was two days after the dacoity at the Habib Bank Branch, appellant Zahid Nasim had come to his shop at 8-00 p m. And requested him to keep his money and watch, as hp had no place for residence. The witness has further testified that the appellant had given him 30 notes of Rs. 100 each and a watch, which was without a strap. The witness has also corroborated S. I. P. Yadgar Hussain and Masher Haider Khan that appellant Zahid Nasim had subsequently come to his shop with the Police and at the instance of this appellant he had produced the above property before the police. In cross-examination, the witness has admitted that he had seen appellant Zahid Nasim only at Lahore and that was 8 or 10 years previously, that appellant Zahid Nasim had never come previously at his shop and that they had no correspondence with each other. He has further stated that the appellant was a Mistry and a poor man, but he has denied that he suspected or was aware that the money or watch was stolen property. We consider that this witness has given true and correct evidence. He has no motive for falsely implicating the appellant and nothing has been brought out in his cross- examination, which would cast any doubt upon his testimony. In view of his very advanced age, occupa--tion and straightforward nature, there was no question of any suspicion attaching to the witness that he either had a hand in the commission of the dacoity or the dishonest intention of receiving stolen property, and consequently there was no occasion for him to remove suspicion from himself by trying to implicate someone else. The watch produced by him has been identified by P. W. Karimbhoy as the one, which was taken away from him during the commission of the dacoity at the Habib Bank. The evidence of P. W. Allahrakha and the recovery of the watch thus furnish very strong corroborative evidence to the ocular testimony against appellant Zahid Nasim.
20. The next piece of evidence incriminating the two appellants is furnished by S. I. P. Maqbool Hussain. He has testified that on the night intervening between the 23rd and the 24th of March, 1975, he was on rounds duty within his jurisdiction, when at about midnight, near the house of Allama Rashid Turabi, he received spy information that three persons armed with deadly weapons were concealing themselves in the ground by the side of the house of Allama Rashid Turabi, upon which he secured two Mashirs and went to the Maidan of Block No. 20, where he arrested the two appellants and one Aijaz. S. I. P. Maqbool Hussain has further testified that appellant Zahid Nasim was carrying a sten gun under his arm-pit while appellant Siddique was carrying a bandolier containing ten cartridges, both of which articles he seized from their possession. The sten-gun was found to contain seven bullets in its magazine. The S.I.P. Has also testified that on interrogation, appellant Moha mad Siddiq took him and the Mashirs to a Nala, which was at a distance of 100 or 150 paces from the place of his arrest and gun from the crevice of the Nala, which he seized in the presence of Mashirs and prepared necessary mashirnamas. S. I. P. Maqbool Hussain is fully supported by Mashir Zafar Hussain. The gun and the bandolier secured from and at the instance of appellant Mohammad Siddik are the very same which had been taken from Chowkidar Asim Khan during the commission of the dacoity. The gun was licensed in the name of the Bank and the particulars of the gun as mentioned in the licence tally with the gun itself, which we have ourselves examined in Court.
21. The two learned counsel have strongly assailed the above evidence and contended that it is got up and wholly unworthy of credit and that as a matter of fact neither of the appellants was arrested from Karachi as claimed by the Police but appellant Zahid Nasim was arrested from Lahore, while appellant Muhammad Siddiq was arrested from his village near Peshawar, as stated by the defence witnesses. We have carefully examined the evidence led in defence but we are not impressed with the same. Now, as regards the news report in the issue of the Newspaper, Daily Mashriq, of 25-3-1975, which has been produced by appellant Z3hid Nasim in his statement, the said report is not admissible in evidence and therefore no weight can be given to it. The learned counsel for appellant Zahid Nasim accordingly examined D. I. G. Dilshad Najmuddin of Lahore who is stated to have held ~he Press Conference reported in the above issue. The evidence of this defence witness, however, is not helpful to the appellant for while admitting that it is possible that he might have held a Press Conference, as stated in the report in the Daily Mashriq, he was unable :o recall whether he bad stated to the Press at that time that Rehmat and Zulfiqar (Zahid Nasim) had been arrested by the C. I. D. Police or that they were being handed over to Karachi Police. The witness explained that as many persons were arrested at Lahore, it is not possible for aim to recollect the names of all persons who were arrested or what exactly was done in regard to them, Of the 3 remaining witnesses Examined by appellant Zahid Nasim in his defence, one is his elder brother, Shahid Aziz, and the other is his father, Fakhruddin, and as such interested witnesses.
According to D. W. Fakhruddin, his son, appellant Zahid Nasim, had all along been living at Lahore with him but despite this fact, the Karachi Police had come to his house in search of Zahid Nasim and he had produced him before the Karachi Police, who arrested him and took him away to Karachi. The witness has admitted that he made no report about the arrest of Zahid Nasim despite the fact that a relation of his employer, Hussain Shah, was an Advocate. D. W. Syed Hussain Sultan claims that he owns two mini-buses, that on the night intervening between the 16th and 17th of March, 1975, appellant Zahid Nasim and the latter's father Fakhruddin, had repaired his mini-bus in the night and left at about 4-30 a. m. That on the next morning, at 7-00 a. m. Fakhruddin came to his house and informed him that Karachi Police had arrested Zahid Nasim, whereupon he went to the Gulberg Police Station and found Zahid Nasim there in the custody of the Karachi Police.
According to this witness, he had complained to his friend, Salim Muhammad, who is employed in the Army Intelligence, and also to Advocate Syed Talib Hussain. Apart from the fact that no mention of these two persons is made by either D. W. Fakhruddin or D. W. Shahid Aziz, neither Advocate Talib Hussain or Salim Muhammad have been examined.
22. As regards appellant Muhammad Siddiq, the defence have relied upon two different pieces of evidence in support of their contention that this appellant was not arrested from Karachi but from his village near Peshawar. The first piece of evidence is the assertion made by this appellant in his confession, recorded by Magistrate Abdul Rashid, that be had been arrested from the city of Peshawar, From this mere assertion, however it cannot be inferred, in the face of reliable contrary evidence that this appellant was in fact arrested from Peshawar city, Furthermore, this assertion is at variance with the defence evidence, which will presently be discussed, indicating that he -was arrested from Landyar Bagh. It' might also be mentioned that though it is mentioned by the learned Magistrate in the record of the confession of this appellant that according to memo from S. H. O.
Brigade Police Station the appellant was arrested at Peshawar on 74-3-1975, an examination of the said memo, which was attached with the record of the confession, clearly shows that it was under some misunderstanding that the learned Magistrate recorded that the memo mentions that the appellant was arrested from Peshawar. The memo. On the contrary, mentions that the appellant was arrested by the Gulberg Police. It may be mentioned that S. I. P. Maqbool Hussain who his testified to having arrested the two appellants was at the relevant time incharge of the Karachi Gulberg Police Station and hence the memo is in accord with the prosecution version that the appellants were arrested by the Gulberg Police at Karachi.
23. As regards the 3 witnesses examined by appellant Muhammad Siddiq in his defence, D. W. Wali Abroad Khan is the son-in-law of this appellant According to this witness, S. I. P. Yadgar Hussain had taken him from Lahore to Landiar Bagh. Some support to the version of Wali Ahmad Khan is provided by the evidence of D. W. Nasir Ali Siddiqui who has stated that the Karachi Police had come to his house at Lahore in search of appellant Muhammad Siddik. The witness, however, has admitted that this appellant is not his servant but the servant of his mother-in-law. In the circumstances, it is not understood why the Police should have come to his house and not to the house of his mother-in-law. It seems to us that Nasir Ali Siddiqui has given obliging evidence at the instance of D. W. -Wali Ahmad Khan, who is his servant and who is admittedly residing with him.
Neither Nasir. Ali nor Wali Ahmad Khan have given the names of the persons who were present when the police came in search of appellant Muhammad Siddiq at Lahore. As regards D. W.
Ghulam Murtaza, who states that in his presence appellant Muhammad Siddiq was arrested from his house at Landiar Bagh Village, not only he has expressed his total inability to be able to identify the Police Officers who had arrested the appellant, but he was also unable to give their numbers.
Furthermore, though he claims that a number of people had collected in front of the house of appellant Muhammad Siddik when the latter was arrested, he has not given the names of any one of them. We have already mentioned that the contention that this appellant was arrested from Landiar Bagh is in conflict with his assertion before Magistrate Abdul Rashid at the time of giving his confession that he was arrested from city of Peshawar.
24. We specifically asked from the learned counsel as to what purpose of the Police would be served by showing the arrest of the appellants at Karachi instead of at Lahore or Peshawar, where according to the appellants they were arrested, but the learned counsel were un--able to give any satisfactory explanation on this point. Furthermore, if the appellants had been arrested at Lahore and N.W.F.P. Not only would it had been necessary to obtain their remand from Magistrates in those places, but also the help of the local police would have been obtained to effect their arrest and entries regarding their arrest would have been made in the records of the local police. No evidence, however, in this behalf has been led. Furthermore, if the appellants were in fact arrested from Peshawar and Lahore, they would have been brought to Karachi by train and the Police Officers as well as the appellants would have travelled on Railway Warrants, which could easily have been caused to be pro--duced in Court. The fact that no such evidence has been produced clearly indicates to us that the allegation that the appellants were arrested from Lahore and Landiar Bagh is false and has been made for the purposes of denying the recoveries of weapons from them.
25. Lastly there is against the two appellants the judicial confession of appellant Muhammad Siddiq, which was recorded by Magistrate Abdul Rashid on 2-4-1975. In this confession appellant Muhammad Siddiq has stated how he, appellant Zahid Nasim and three others went to the Habib Bank Branch at Karachi and committed a dacoity therefrom, during the course of which they took away watches from the employees and also cash, a gun and a bandolier. We are, however, not inclined to place any great reliance on this confession, because firstly, the confession was recorded 9 days after the arrest of appellant Muhammad Siddiq during the whole of which period he was in Police custody, and secondly even after the recording of the confession this appellant remained in Police custody, though according to Magistrate Abdul Rashid, he had assured the appellant that he would not be remanded to police custody. It may be mentioned that though in the Form of the confession it is to be mentioned whether the accused has been remanded to Police custody or forwarded to the Sub-Jail, the learned Magistrate has failed to indicate what course he actually took and has not crossed out either of the entries relating to the custody of the accused.
Furthermore, the learned Magistrate has not given any cogent grounds for believing the confession to be genuine and has simply relied upon the statement of the appellant that it was genuine. It might also be mentioned that the confession neither mentions any weapon being carried by appellant. Muhammad Saddiq at the time of dacoity nor the recovery of gun or bandolier from him.
26. The exclusion of the confession of appellant Muhammad Siddiq does not in any way impair the prosecution case against the two appellants. The remaining evidence against them, in our opinion, is sufficient to establish their guilt beyond any reasonable doubt.
27. For the foregoing reasons, we consider that there is no merit in the appeals filed on behalf of the appellants. Looking to the gravity of the offence established against them, the sentence awarded to them cannot be considered to be severe. We would accordingly dismiss the appeals of the appellants.