' AZIZULLAH M. MEMON, J.--Accused/appellants Muhammad Tahir Khan alias Hanif Chikna, (2) Ali Asghar and (3) Nisar Ahmed, were tried by the learned Court of Vth Additional Sessions Judge, Karachi, South, in Sessions Case No,91 of 2002 (pertaining to case F.I.R. No,110 of 2001 of Police Station Eidgah, Karachi) and were found guilty vide judgment, dated 28th November, 2006, recorded by the said learned Court or having committed offence punishable under section 395, P.P.C. And thereby were convicted and sentenced to suffer imprisonment for life and each of them to pay fine amount of Rs.50,000 or in default of such payment to further suffer rigorous imprisonment for six months, each, with benefit under section 382-B, Cr.P.C. Accused/appellants were further directed to forfeit their respective properties to the extent of Rs.100,000 (One lac) each and the amounts, if so derived, were directed to be deposited in the government treasury.
2. Two other accused persons were shown in Column No,2 of the challan submitted by the police, who proved to be absconders till the trial concluded before the learned trial Court.
3. The accused/appellants have filed the present criminal appeals against the said judgment of conviction recorded against them respectively.
4. Heard, Mr. Abdul Razzak for the accused/appellants and Mr. Haji Abdul Majeed fnr the State.
5. These appeals were heard and decided by the short order, dated 7-4-2008, in the following terms:-- ' "Heard learned counsel for the appellants in all the three criminal appeals as well as Mr. Haji Abdul Majeed, Advocate, appearing for the State therein.
' Learned counsel for the State concedes that the evidence recorded by the trial Court does not inspire confidence so far the identification of the appellants/ accused is concerned regarding their being the actual culprits of the incident.
' For the reasons to follow in the detailed judgment, these appeals are partly dismissed and partly allowed, to the extent that the conviction recorded by the trial Court against the appellants is converted into one under section, 411, P.P.C. And sentence reduced to the one already undergone by the accused appellants, appellants shall be released forthwith if not required in any other case.
' Cash amount recovered in this case is directed to return back to the competent officer of the Head Office of the Bank in question".
' Prosecution story, briefly, is as under:--
6. Complainant Liaquat Ali stated in his F.I.R., which was registered at Police Station Eidgah, on 10th December, 2001, at 1645 hours, that he was on his duty in the Timber Market Branch of Muslim Commercial Bank as Accountant and was busy there with other bank staff, when on the close of the business hours, he directed absconding accused/security-guard, Gul Marjan, to close the outer gate of the premises of the bank. Gul Marjan was serving in the Phoenix Security Service (Pvt.)
Limited as a security guard and his services were placed at the disposal of the said bank accordingly. At 1430 hours, some one knocked the outer door from outside, whereupon Gul Marjan, security-guard opened the same door despite the fact that he was forbidden from doing so by the complainant as well as by other staff of the said Bank Branch; four culprits, whose faces were muffled, thereby entered into the said bank premises duly armed with TT pistols; the complainant and other members of the staff were made hostage at the hands of the said culprits and were taken to the cabins of cashiers, namely., Qasim and Asif Qadri, who were also then took hostage at the hands of the culprits; similarly, Waqar and Shahzad were also taken hostage at the gunpoint and were made to sit in one corner of the business hall by keeping their respective hands upon their heads.
7. Thereafter, the said culprits removed the cash amount from the drawers of cashiers, Asif and Qasim, total amounting to Rs.19,61,770. Three other culprits also managed to make entry into the said Bank premises and kept standing there. Two of the earlier mentioned culprits snatched the key of the strong room from the complainant and removed cash amount of Rs.65,26,351 and placed the same in a cloth bag, (total amounting to Rs.84,90,121) comprising of different denomination of the currency notes. The culprits ensured the proper confinement of all the Bank staff to their own satisfaction, made the electric alarm devices unfunctional; then the culprits; by taking security- guard Gul Marjan with themselves, left the bank premises and made good their escape on the motorcycle of Gul Marjan and on the other motorcycle owned by Asif Cashier, bearing Registration No,KAP-707 and KCA-5447 respectively.
6. On registration of the F.I.R., the Investigation Team was constituted being supervised by SDPO Shahjehan Yousufzai Pathan. The circumstantial evidence concluded that security-guard Gul Marjan had entered into a concert with the other culprits whereby the dacoity was carried out under a plan prepared in advance by all of them. Police party proceeded to the tribal area in South Waziristan for the arrest of the culprits and met with father of the said absconding accused Gul Marjan, who disclosed that Gul Marjan had already expired, having been killed by some culprits, and his photograph was shown by the police party, who were informed that the said photograph was not of Gul Marjan and instead was of one Roshan Khan, who had come to the said area some days before, having money with himself brought from Karachi, and then went away towards Afghanistan area.
7. On 19-1-2002, accused/appellant Tahir alias Hanif Chikna was arrested for offence under section 13-D of the Arms Ordinance, during the night time and, during interrogation, disclosed his involvement in the incident of this case along with other culprits, and further made disclosure that his co-accused were residing in Larkana, whereupon SDPO Shahjehan with other members of the Police party proceeded to Larkana and with the help of the police officials of CIA Larkana, appellants Nisar Ahmad and Ali Asghar were arrested while appellant Tahir alias Hanif Chikna was also taken by the police party there, who pointed out the other two accused to be Nisar Ahmed and Ali Asghar, who are accomplices with accused Tahir alias Hanif Chikna.
10. Appellant Nisar voluntarily produced robbed cash amount of Rs.5,45,000 so also appellant Ali Asghar having been arrested, voluntarily produced cash amount of Rs.400,000.
11. All the accused and property were then taken back to Karachi, where appellant Tahir alias Hanif Chikna further produced cash amount of Rs.17,00,000 from a house situated in New Karachi.
Investigating Officer, Inspector Shahabuddin, also made recovery of amount of Rs.400,000 from the possession of accused Tahir alias Hanif Chikna separately.
12. On completion of the investigation, accused/appellants were sent up to the Court of law to face the trial, as stated above.
13. P.W. Liaquat Ali, accountant of the above said Bank Branch, deposed that faces of the culprits were muffled and, therefore, he could not be sure whether the accused/appellants are the same culprits, who committed the dacoity of the present case. So also P.W. Muhammad Qasim deposed before the trial Court that faces of the culprits were muffled at the time of the incident. P.W. Waqar Ahmed also stated to the same effect.
14. P.W. Shahzad Anjum could not be examined by the prosecution before the trial Court for the reason that, as deposed by Rana Abid Azeem, SIP before the trial Court, P.W. Shahzad Anjum had already resigned from the service of the Bank and was not traceable.
15. P.W. SIP Muhammad Nawaz Bajwa also deposed about the recovery of the cash amount from the present appellants, as reproduced hereinabove in terms of the deposition of SDPO Shah Jehan Yousufzai Pathan.
16. Town Police Officer Shahabuddin also deposed in the same terms and proved the recovery of the cash amount from the possession of the accused/appellants.
17. In their respective statements, under section 342, Cr.P.C. Appellants denied the allegations of the prosecution and alleged that they were falsely implicated in the case. They did not produce any evidence in their defence nor examined themselves as their own defence witnesses.
18. As stated above, the witnesses have deposed before the trial Court that faces of the culprits of this incident were muffled and, therefore, they were unable to state in clear terms if the accused tried in the Court were the same culprits.
19. Hence, none of the present appellants is found to have stood connected with the actual commission of the offence of dacoity.
20. However, the recoveries of the different cash amount from the possession of the accused/appellants, as reproduced hereinabove, stand proved through the above named witnesses of the prosecution. The appellants have not produced any evidence whatsoever to say that they could falsely have been involved in this case for the said recoveries of the different amounts from their respective possession. Hence, they were found to be guilty of offence punishable under section 411, P.P.C.
21. So also learned counsel appearing for the State conceded to the effect that the evidence produced before the trial Court did not inspire-confidence so far the establishment of identification of the appellants/accused to be the actual culprits of incident of this case is concerned.
22. Hence, vide short order, dated 7-4-2008, these appeals were partly dismissed and partly allowed to the extent that the conviction recorded by the trial Court against each of the appellants was converted into one under section 411, P.P.C. And sentence awarded against them respectively, reduced to the one already undergone by each of them. They were directed to be released forthwith, if not required in any other case and cash amount recovered from the possession of the accused/appellants was directed to return back to the competent officer of the Head Office of the Muslim Commercial Bank under proper receipt.