' DR. FIDA MUHAMMAD KHAN, J.---This appeal filed by The State through Advocate-General, Khyber Pakhtunkhwa against respondents/accused namely Khalil, Jehanzeb and Yaseen is directed against the judgment dated 22-5-2008 passed by learned Additional Sessions Judge-I, Nowshera whereby he has acquitted the respondents/accused froth the charge under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) read with sections 412, P.P.C. And 202 Drug Act.
2. It may be mentioned that one of the respondents namely Gulrez was stated to have been murdered and, therefore, his name was dropped from the proceedings vide this Court's Order dated 11-9-2013.
3. Brief facts of the case, as narrated in F.I.R. Lodged on 21-10-2006 at Police Station Nowshera Cantt., are to the effect that on 21-10-2006, the complainant Mubarik Ahmed AVP/Chief Manager, Habib Bank Limited, Nowshera Cantt. Branch reported in writing to the local police that on 20-10- 2006 that after finishing normal work of the bank all the staff left the bank and as a routine, only the security guard Noroz was present on his duty at night. On 21-10-2006 at about 4.00 O'clock in the morning, the said security guard informed Abul Hassan Manager (Operations) to the effect that during the night, dacoity had taken place in the bank. Abul Hassan, Manager (Operations), informed the local police at Police Station Nowshera Cantt. And himself came to the bank at about 4-30 a.m. He checked the bank record and found that the dacoits after entering the bank had broken the strong room and safe locks and had taken away an amount of Rs,52,75,960 (fifty two lacs, seventy five thousand, nine hundred, and sixty rupees) and some sealed packets after breaking the lockers. Hence, the instant case.
4. The case was investigated by Wali Ayaz Khan, S.I. And after -completion of all legal formalities challan was submitted to the trial Court.
5. The learned trial Court framed charge against the accused/respondents under the said Ordinance read with section 412, P.P.C. And section 202, Drug Act. The accused, however, did not plead guilty and claimed trial.
6. The prosecution in order to prove its case produced 14 witnesses at the trial. The gist of their evidence is as under:-- ' P.W.1 is Maqsood Khan, IHC. He is a marginal witness to the recovery of memo Exh.P.W.1/1 vide which the house of accused Safeer Iqbal was searched and a black shopping bag containing money was recovered from a residential room. The said amount contained 100 notes denomination of Rs,5,000, two packets of Rs,1,000 denomination. The amount was sealed into a parcel by the I.O. And the memo was signed by the P.W.; ' P.W.2 is Sher Hassan, Foot Constable No,1036. He was entrusted the warrants under section 204 and proclamation under section 87, Cr.P.C. Issued against the accused Safeer Iqbal and Qayyum alias Kobay and returned the warrants along with his reports and also proclamation having his report on its back; P.W.3 is Muhammad Naseem, MHC. He received the whole case property, which was recovered from accused Khalil, Gulrez and Jehanzeb; ' P.W.4 is Mubarik Ahmed, AVP/Chief Manager of HBL, Nowshera. He is complainant of the case and reiterated the same facts, as he got recorded in the F.I.R.; ' P.W.5 is Abul Hassan, Manager Operation HBL, Nowshera Cantt. He corroborated the statement made by complainant, Mubarik Ahmed, P.W.4; ' P.W.6 is Noroz, Gunman of the said HBL. He also corroborated the statement made by P.W.4, Mubarik Ahmed and gave the details of incident of dacoity committed in the bank. He could not charge or identify the accused present in court; ' P.W.7 is Mukhtiar Gul, Head Cashier, HBL Nowshera Cantt. He visited the police station, Nowshera on the direction of Manager Operation to identify the recovered currency notes and correctly identified the packets of currency notes duly stamped by him in the bank and to this effect his statement was recorded as Exh. P .W .7/1 ; ' P.W.8 is Hanif Ullah, ASI. He verified his statement regarding the recovery memo Exh.P.W.8/1 vide which Ejaz Khan, S.I. Produced before the I.O. Four pieces of cigarettes which were smoked by the accused and left by them in the bank; ' P.W.9 is Dr. Said Badshah, Medical Officer, DHQ Hospital, Nowshera. He conducted medical examination of injured Noroz and found the following injuries on his person:- ' the patient was fully conscious at that time during his examination. ' lacerated wound about 1 x 1/2 inches on forehead. ' bruises wound on left buttock and leg interiorly.
' He also took samples of blood and urine of the injured sealed and signed the same and handed over to the police for chemical examination. According to the opinion of Radiologist, no fracture of bone was seen in the X-ray of his skull; ' P.W.10 is Sher Afsar Khan, SHOT He stated that on 27-10-2006 he, along with Muhammad Rauf and ,Amir Hussain, ASIs, was on gasht and received spy information that accused Khalil, Yaseen and Gulrez were coming in Parado Jeep No,PRU-1642. On this he stopped the vehicle in question in which the accused named above were sitting. He arrested them and conducted their search. From the personal search of accused Khalil, he took into possession two phial from his pocket and also recovered a .30 bore pistol along with 9 live rounds from the possession of accused Gulrez. During search of the vehicle he recovered two bags containing the instruments shown by him in the recovery memo. All the articles including Parado Jeep, two phials and .30 bore pistol with 9 live rounds are as Exh.Pl to Exh.P24. He prepared the recovery memo Exh. P.W.10/1 in the presence of marginal witnesses and took the arrested accused to the police station. The accused were locked up and the recovered articles were handed over to the moharrir. Then he visited the place of occurrence with the Investigating Officer and the site plan was prepared by the I.O. At his pointation. The investigation was initiated and the robbed amount was recovered by the I.O. In his presence the recovery was made from the houses of accused Khalil, Gulrez and Yaseen. Similarly the I.O. Recovered amount from accused Jehanzeb as his brother Aurangzeb brought the same and took into possession by the I.O. Through recovery memos Exh.P.W.10/2 to Exh.P.W.10/5. His statement was correctly recorded by the I.O. On 9-2-2007 he raided the house of absconding accused Safeer Iqbal and from his house he recovered and took into possession Rs,700,000 from a shopping bag lying in a steel box; ' P.W.11 is Amir Hussain, Head Constable. He made statement in line with the statement made by Sher Afsar, SHO and also corroborated the contents of his statement; ' P.W.12 is Bahader Sher, IHC. He is witness of recovery memo Exh.P.W.12/1 vide which the I.O.
Recovered and took into possession from the place of occurrence a hammer P-25, two iron rods P.26-27, 10 drill rods P-28, grinder machine P-29, a locker plate P-30, grinder plate P-31, a handkerchief P-32, mask P-33, five shalwar strings P-34 and a black cap P-35. Similarly vide memo Exh.P.W.12/2 the I.O. Took into possession urine in a bottle sent by the doctor through Ajmal Khan, FC.
Likewise blood of P.W. Noroz Gunman. He is witness of recoveries of other various items took into possession by the I.O.; ' P.W.13 is Wali Ayaz, Retd. S.I. Who conducted the investigation in this case and after completion of the same handed over the file to the SHO who submitted complete challan to court; ' P.W.14 is Qaisar Rahim, Senior Civil Judge, Nowshera. He stated that on 16-12-2006 the case property in the shape of currency notes amounting to Rs,33,00,000 of different denomination was produced before him by the local police. He directed the local police to write down the number of each note and to this effect a list Exh.PZ consisting of 19 sheets was prepared and the said Civil Judge signed the same. The complainant party/submitted an application for superdari of the said amount which was accepted and the said amount was handed over to bank officers on superdari vide his order dated 1-2-2007;
7. After close of prosecution evidence the learned trial Court recorded statements of accused Khalil, Jehanzeb, Yaseen and Gulrez. Each one, however, claimed innocence and denied the prosecution allegations. None of them either opted to make statement on oath nor produced any evidence in defence. The learned trial Court, after completing the legal formalities, came to the conclusion that the prosecution had failed to prove its ease against the present accused/respondents and consequently acquitted them from . All charges.
8. We have heard learned Deputy Advocate-General, Khyber Pakhtunkhwa learned counsel for the respondents and also perused the impugned judgment and other material available on record.
Learned DAG submitted that:-- ' the recovery of looted amount i,e, Rs, 3300,000 in total on the pointation of each accused was effected from their houses and that is sufficient for their conviction; ' the said amount recovered from the accused/respondents identified by the Head Cashier Mukhtar strengthens the case of prosecution; ' the recovery of equipment used in the commission of offence from the possession of accused lends further strength to the case of prosecution; ' the amount of Rs, 700,000 recovered from the house of absconding accused Safeer Iqbal alias Sardar Younus also lends support to the prosecution version; ' the impugned judgment of the trial Court is based on misreading and non reading of the prosecution evidence.
9. Learned counsel for the respondents fully supported the impugned judgment. They submitted that the case of prosecution is based on the recoveries which themselves are highly doubtful. Since the respondents/accused have been acquitted, they have earned double presumption of innocence. They placed reliance on the following reported cases:-- "2010 SCM R 222, 2009 SCM R 230, 2007 SCM R 1390, 2013 PCr.LJ FSC 772, 2013 PCr.LJ FSC 1683, 2012 PCr.LJ FSC 1699, 2013 PCr.LJ FSC 1110, 2012 PCr.LJ FSC 285".
10. We have gone through the evidence on record and have also perused the impugned judgment.
It transpires that the occurrence of robbery took place on the night intervening 20/21-10-2006 and report in this respect was lodged soon thereafter at 5-30 a.m. By Mubarak Ahmed, AVP/Chief Manager, HBL, Nowshera. The case was registered under the said Ordinance and after examining 14 P.Ws. And recording statements of the accused, the respondents/accused were acquitted from the charge. Hence this appeal by the State.
11. As is evident, the F.I.R. Lodged at 5-30 a.m. On 21-10-2006, soon after the occurrence reveals only the occurrence of dacoity committed by some unknown accused who had entered the strong room in the bank and broken the safe and taken away an amount of Rs,52,75,960 and some sealed packets of currency notes. As such, the case of prosecution mainly rests on the recoveries allegedly effected on the pointation of the respondents/accused.
12. It is pertinent to mention that according to the F.I.R. At the time of occurrence only Noroz, Security Guard was present on duty and he was the one who had informed Abul Hassan, Manager Operation, HBL at 4-00 a.m. About the commission of robbery in HBL Cantt. Branch Shobra Chowk, Nowshera. It was stated by him that the accused had entered the strong room and after breaking open the safe looted some amount. After arrival of the said Manager Operation, however, it was disclosed that Rs,52,75,960 and some sealed packets contents had been taken away by the unknown accused.
13. The MLR of Noroz, Security Guard supports the factum of dacoity. He has appeared as P.W.6 and specifically mentioned that while he was on duty in the bank as Security Guard and was busy in shaving his beard in the bathroom, two accused who had duly muffled their faces, entered the bath room, hit him a blow with a pistol on his head. Both of them caught hold of him, pulled him down to the earth and after tying up his hands and legs with the string of shalwar and his mouth with the handkerchief, they injected something in his hip. They also orally administered some liquid to him and thereafter he got unconscious. After gaining consciousness, however, he heard some talk questioning his consciousness and getting no reply from his side, they left the bank, considering him still unconscious. Before leaving the bank, however, they locked the wash room door from outside. Somehow, he succeeded to untie his hands and legs and remove the 'handkerchief. Then he managed to get outside through the exhaust space, entered the adjacent room and thereafter he found that the ATM and main gate of the bank were open. He locked the ATM as well as the main gate of the bank and informed the Operational Manager of the bank regarding the occurrence. Later on the said Manager and local police came to the bank and he was sent to the hospital for medical treatment, wherefrom he was taken to Police Post CIA, Nowshera. He added that he had not seen/identified anybody, therefore, he was not charging the accused, present in the court on the day when his statement was recorded. This statement clearly establishes the fact that P.W.6 was the only eye-witness of the occurrence and he saw only two accused who had duly muffled their faces had committed the robbery but they were not identified by him. He has been cross-examined in great detail but nothing fruitful to the defence has been adduced from him.
14. The case of prosecution mainly rests on the following recoveries:-- Rs, 12,40,000 from the house of accused Khalil on 30-10-2006; ' Recovery of Rs,6,20,000 from the, house of Gulrez on 30-10-2006; ' Recovery of Rs, 6,30,000 from brother of Jehanzeb accused on 30-10-2006; ' Recovery of Rs, 810,000 from the house of accused Yaseen accused on 31-10-2006.
15. There is no confessional statement or other substantive evidence that could have been made basis for the case of prosecution. These recoveries are, however, doubtful for several reasons.
Though these recoveries have been effected from the houses of the said accused, the provisions of section 103, Cr.P.C. Have not been complied with as required under the, law. Neither any independent witness has been associated with these recoveries nor any one from the elders of the locality was associated. It is also significant to note that out of these recoveries two were made outside the jurisdiction of District Nowshera but the local police did not obtain a proper search warrant from the competent Magistrate and neither executed these warrants with the aid of the local police. Moreover, the said recoveries were not produced before the nearest Magistrate soon after its recovery. The local police failed to observe the legal procedure as required and as such the recoveries have no sanctity in the eyes of law.
16. In this connection it is also very pertinent to point out that according to the prosecution while the accused Khalil, Gulrez and Yaseen were arrested on 27-10-2006, Jehanzeb was arrested on 30- 10-2006. The above mentioned recoveries of Rs, 33,00,000 were effected on 30-10-2006. In their statements made under section 342, Cr.P.C. The accused have referred to and produced in their defence some press clippings of the press conference conducted jointly by DIG Mardan Range and DPO Nowshera in the presence of the Senior Bank Officers. These press clippings were published in the Daily Express, The News, Jang, Khabrain, Nawa-i-Waqt, Mashriq and Muslim on 28-10-2006 and exhibited as D-1 to D-7. One wonders while they were already with the police on 27-10-2006 why the necessary legal formalities mentioned hereinabove were not duly complied with. We may add that the factum of the said press conference has been admitted by P.W.4 and P.W.7, though denied by P.W.10 and P.W.13 who have denied even the fact of the press conference and rendered their testimony incredible. Moreover, we may point out that while P.W.10 had denied the use of snuffer dogs to the scene of occurrence by the I.O./Army Personnel, this fact has been admitted by P.W.13 and some other witnesses which of both these witnesses which is not only contradictory but not worth any credence as well.
17. Another important aspect of the case is that the above-mentioned HBL is located on the main G.T. Road near Shobra Chowk where several other banks and financial institutions having their own Security Guards/watchmen were also available. Admittedly that was the most busy place in Nowshera where traffic on the G.T. Road ply continuously, day and night, without break. The date of occurrence falls in the last days of Ramazan just before the Eid-ul-Fitr while many Muslims are awoken for Sehri, but despite this fact not a single witness was ever associated with the proceedings who could have lent any support to the solitary statement of the only eye-witness P.W.6 Noroz.
18. It is pertinent here to refer to some of the considerations laid down by the Superior Courts in an appeal against acquittal and in an appeal from conviction. It has been held that principles considered for interference in both such appeals are altogether different. The well-settled principle for the appreciation of appeals against acquittal are-- "(i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;
(iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) that unless the judgment of acquittal is perverse and the reasons therefore are artificial and ridiculous, the. Supreme Court would not interfere; and
(v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose."
(vi) Since, this is a case of circumstantial evidence, recovery of currency notes is legally doubtful for the reasons stated above. In view of this we have come to the conclusion that the trial Court has rightly acquitted the respondents from the charge. We have found no illegality or infirmity in the case nor any other cogent piece of evidence to be made basis for setting aside the acquittal which at this stage has acquired status of double presumption of innocence to the accused.
19. In view of the above, this appeal against acquittal is misconceived and does not fulfil the criteria mentioned above. Hence it is dismissed in limine.
20. These are the reasons for our Short Order passed on 16-1-2014.