DR. FIDA MUHAMMAD KHAN, J.---The appellants/accused Momin Khan, Ajab Khan, Muhammad Zaib and Shaukat Khan have called in question the judgment dated 29.05.2014 passed by learned Additional Sessions Judge Swabi, at Lahor, by virtue of which they have been convicted and sentenced as mentioned herein under:-- ' Under Section 392, P.P.C.
10 years R.I. Each with fine of Rs.200,000/- each and in default thereof to further undergo six months S.I. Each ' Under Sections 148/149, P.P.C.
' 02 years R.I. Each with fine of Rs.5000/-each in default of non payment of fine to further suffer one month S.I.Each ' Under Section 411, P.P.C.
' 02 years R.I. Each and fine of Rs .8000/- and in default one month S.I.
' Under Section 13 of Arms Ordinance ' 03 years R.I. Each with fine of Rs. 2000/-each and in default thereof to further undergo one month S.I. Each.
' The sentences awarded to all the appellants/accused on all counts have been ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Has also been granted to all the appellants/accused.
2. Complainant Umar Wahid has also moved Criminal Revision No. 03/P of 2014 for enhancement of sentences awarded to all the appellants/accused vide the same judgment. Since the appeal and the revision arise out of one and same judgment, we are disposing both matters by this single Judgment.
3. Brief facts of the prosecution case as gathered from the murasala (Ex.PA/1) which makes basis of FIR (Ex.PA), are to the effect that on 01.02.2013 complainant Umar Wahid along with his servant Shahpur Khan was going to Islamabad via motorway and was carrying cash amount of Rs. 11.2 millions. When they reached near the village Jalsai, a jeep overtook them wherein five persons wearing police uniform were sitting. They started their search and looted the whole amount along with a licensed klashincove and a licensed 9MM pistol from the complainant and his companion.
They told them that they would take them to Islamabad for further investigation. However, after some time the complainant and his companion were forced to deboard from their vehicle. Then the accused made good their escape in their jeep. The complainant through his brother contacted the local police present nearby at the motorway. The police squad under the supervision of Gul Jamal, DSP chased the vehicle of the said accused and ultimately over powered the accused and arrested them along with the looted money and the weapons. Murasala (Ex.PA/1) was accordingly drafted and formal FIR was registered thereafter.
4. Investigation of the case was entrusted to Wafadar Khan, S.I. He visited the place of occurrence, prepared site plan (Ex.PB) on the pointation of complainant and eye-witnesses. He recorded statements of witnesses under section 161 Cr.P.C, sent the weapons to the firearm expert vide application (Ex.PW.7/1) for opinion. He took into possession two number plates lying in the jeeb vide memo (Ex.P1), one ID card (Ex.P2) of police department in the name of accused Momin Khan with designation of Sub-Inspector, one ID card (Ex.P3) of head constable of police in the name of Ajab Khan, three photographs in police uniform (Ex.P4) and one CNIC (Ex.P5) lying in the jeep. All these items were taken into possession. He took custody of the accused from the court vide application (Ex. PW.7/2). He interrogated the accused and during investigation accused led the police party to the spot. On the plantation of accused Momin Khan, he recovered an amount of Rs. 300,000/- (Ex.P6) which was concealed in the bushes while the remaining three accused namely Ajab Khan, Muhammad Zaib and Shaukat Khan pointed out the place wherefrom he recovered klashincove (Ex.P7) loaded with 70 live rounds and one 9MM pistol along with 37 live rounds. The recovered amount, klashincove and pistol were taken into possession recovery memo (Ex.PW.5/2). He recorded statements of accused under section 161 Cr.P.C., vide application (Ex.PW.7/3), produced them before the court for recording their confessional statements which they, however, refused.
They were sent to judicial lock up. After completing all legal formalities, the 1.0. Handed over the file to the SHO for submission of challan to court.
5. The learned trial court framed charge against all the accused/appellants under sections 148/149, 171/149, 411/149, P.P.C. As well as under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 13 of Arms Ordinance. The accused did not plead guilty and claimed, trial.
6. The prosecution produced 09 witnesses at the trial to prove its case. A gist of their evidence is as under:?
' PW . 1 is Umar Wahid, complainant. He reiterated the same facts as were recorded in the FIR; ' PW.2 is Shahpur Khan. He corroborated the statement of complainant Umar.
' PW.3 is Raza Khan, MHC. On receipt of Marasala (Ex.PA/1), he drafted formal FIR (Ex.PA);firearm.
PW.6 is Qamar Zaman Khan, ASI. Like PW.5, Abdul Azeem he is also a marginal witness of the recovered items; ' PW.7 is Wafadar Khan, SI. He conducted investigation in the case. The detail of his role in the investigation has been mentioned hereinabove; ' PW.8 is Dr. Asghar Ali Shah, DHQ Hospital, Swabi. He medically examined accused Momin Khan on 02.02.2013 and found the following:- "Injured conscious with history of ' PW.4 is Fazal Meraj, S.I. He deposed that on the day of occurrence he along with other police officials was on routine gasht and saw a white motor car parked near Yar Hussain "U Turn" while a Jeep was running in high speed. At some distance the said jeep stopped and its occupants started running towards Jalsai Mera. In the meanwhile he passed message on mobile that such an occurrence had taken place and that they had chased the culprits during which cross firing took place. In the meanwhile another police party in the supervision of DSP and SHO reached from the Jalasi side. Ultimately the accused were overpowered and he handed over the accused Momin Khan along with Klashnikove to the SHO; ' P.W.5 is Abdul Azeem, ASI. He is a marginal witness of recovery memos of the items recovered from the accused; ' On examination A grazing firearm wound size about 3 cm in length skin deep on the forehead with right side lateral aspect of scalp.
Nature of Injuries Shajjah Khafifa. The kind of weapon used firearm.
' He issued medico legal report (Ex.PW.8/1).
' On the same day he also medically examined injured accused Shaukat Khan and found the following:- ' Injured conscious and well oriented in time and space and person.
' H/O firearm injury right foot.
' On examination Firearm entrance wound on the right foot lateral aspect size about 1/2 x 1/2 cm in length.
' Referred to B.M.C. For X-Ray and surgical OPD.
' Nature of injuries Jurh Ghyre Jaifah mutalahima.
' Kind of weapon used firearm.
' He issued medico legal report (Ex. PW . 8/3) " ; and PW.9 is Muhammad Fayyaz Khan, Inspector/SHO Police Station Lahor, Swabi. He deposed that on the day of occurrence he received information from Fazal Miraj S.I. That some unknown persons had snatched money from owner of the motor car on motorway. On receipt of said information he along with police party chased the accused and all the accused/appellants were overpowered and arrested. He recovered klashnikove 222 bore from accused Momin Khan. He recovered pistol and live bullets and cash amount Rs. 20,00,000/-from accused Ajab Khan and a 30 bore pistol without number with fixed charger having three rounds from the possession of accused Muhammad Zeb. Similarly from accused Shaukat Khan a 30 bore pistol No.A4551 with 4 rounds and an amount of Rs.7050,000/- were recovered. He drafted murasala (Ex.PA/1) and then formal FIR (Ex.PA) was registered.
7. After closing the prosecution evidence the learned trial court recorded statements of all the accused/appellants under section 342 Cr.P.C. Wherein they all denied the prosecution allegation and claimed innocence. They stated that the PWs had made false statements and had falsely involved them in this case. They did not opt to make statements on oath under section 340(2), Cr.P.C. Nor produced any evidence in their defence. The learned trial court on conclusion of the proceeding and hearing counsel of the parties found them guilty and, therefore, convicted and sentenced them as mentioned herein above. Hence the present appeal.
8. We have heard learned counsel for the parties and perused the record with their assistance.
9. Learned counsel for the appellants submitted that the case of prosecution is highly doubtful in respect of place of report, place of recovery of jeep, recovery of the huge alleged amount, presence of complainant on motorway and presence of witnesses on the spot. He also submitted that neither 9MM pistol nor klashincove were recovered nor duly recorded at the time of arrest of accused. He further submitted that there is neither confession of any appellant/accused nor any identification parade was ever conducted. He further submitted that the injuries found per medical report have not been explained nor its duration has been mentioned. The learned counsel also made submissions about the non recovery of empties from the place of occurrence. The learned counsel placed reliance on:-- PLD 1960 (W.P.) Karachi 753 Amir Ali v. The State 1997 PCr.LJ 225 Islam Gul v. The Sta 1997 .PCr.LJ 1900 The State v. Pirak 2012 M LD 1601 Sher Zaman and 4 others v. The State and another
10. Learned counsel for the complainant submitted that the appellants/ accused were arrested from the spot and recoveries were effected. He submitted that despite some lapses by the police, the case of prosecution against the appellants/ accused is established to the hilt. Explaining the contradictions found in the statements/depositions of PWs he contended that the accused/appellants were arrested from different places spread over a long and wide area.
Regarding the huge amount allegedly recovered, he submitted that it was handed over to the complainant, though not strictly in accordance with the legal requirements. He also made submissions regarding registration of the car in-question at Islamabad and recovery of an amount of Rs. 300,000/- etc from the bushes on pointation of the appellants/accused. He further submitted that Momin Khan was a proclaimed offender, though previously a police official. Regarding the identification parade he submitted that it was not required as the appellants/accused were arrested on the spot. He concluded that there was no mala fide on the part of the complainant party.
11. Learned Assistant Advocate General for the State also supported the impugned judgment.
12. We have thoroughly considered each and every point agitated by learned counsel for the parties and have minutely gone through the evidence brought on record in the light of their submissions.
13. It transpires, as alleged by the prosecution, that on 01.02.2013 complainant Umar Wahid was going" to Islamabad along with his servant Shahpur Khan (PW.2) via motorway. He was carrying cash amount of Rs.11.2 millions also. When they reached in the limits of Village Jalsai, a jeep carrying five persons, wearing police uniform, overtook their car and after stopping them, started their search and resultantly snatched the whole amount along with a licensed klashincove and 9 MM pistol from the complainant and his companion/servant Shahpur Khan. The said uniformed persons told them that they were to take them to Islamabad for further investigation. After some time, however, they forced the complainant and his companion to deboard from the vehicle and themselves fled away from the spot in the jeep. The complainant through his brother contacted the local police, present nearby at the motorway, who chased the vehicle of the accused. Afterwards the police squad under the supervision of Gul Jamal, DSP over powered appellants/accused and after their arrest recovered the said amount and weapons. A case was registered against the accused and their absconding co-accused Salman for the commission of the offence.
14. On minute perusal, the case of prosecution at the trial, however, suffers from material legal infirmities which has created dint in the whole case. To start A with we may mention that no confession has been made by any one of the appellant/ accused. This murasala per report of the Incharge Officer Police Station Lahor was recorded on the statement of complainant Umar Wahid wherein he has alleged that he was carrying Rs. 11.2 millions cash and klashincove while his companion/servant Shahpur Khan was having 9MM pistol. On the way they were over taken by a jeep carrying five persons who stopped them and recovered the whole amount and licensed klashincove and licensed pistol from both of them and also hand cuffed them. After sometime, however, they opened their hand cuffs and resultantly they made their good escape. The complainant contacted his brother Sajjad who informed the police mobile on motorway telling them that the accused had run away to Peshawar side in their jeep after looting the complainant on gun point. Police chased those persons who after deboarding from their jeep fled away but were, however, subsequently over powered. The complainant identified four of the accused who had snatched klashincove, pistol and the whole amount from him.
15. This murasala was drafted on 01.02.2013 at 16.00 hours. On its basis the FIR was lodged at Police Station Lahor on the same date at 16.50 hours.
16. The case of prosecution is mainly based on the ocular account as well as on the recoveries. We may mention that there is no confessional statement by any one of the accused, though PW.7 produced them for this purpose before the court vide his application (Ex.PW.7/3). All the accused, however, refused to make confession and were sent to judicial lock up. We may also mention that the case was lodged, initially, according to murasala against "unknown accused" who had snatched some amount, klashincove and pistol from the complainant and his companion. It was after their arrest that their names were mentioned by PW.9 Muhammad Fayyaz Khan, Inspector/SHO. The complainant, however, had not nominated any one of them. It is significant that the complainant who had initially informed his brother Sajjad on telephone had not told him about the names of the accused persons and his brother had responded that the accused must be dacoits. This reveals that the complainant was unaware of their identification. It was after their arrest, he stated that they were the same accused who had committed the offence. Regarding this, learned counsel for plainant submitted that since they n arrested on the spot there was no r any formal identification parade interest of justice, however, there have been identification parade to e specific role to each one of them as was subsequently stated by the PWs. In this connection, the Judgment (Ex.DA/1) placed on file by the defence, however, reveals that the complainant had faced trial in case FIR. No.32 dated 28.04.2011 under section 9 of Control of Narcotic Substances Act, 1997 at Police Station Anti Narcotics Force Peshawar and had been convicted and sentenced there under. It was agitated by learned defence counsel that one of the close relatives of the accused who had been sent to Saudi Arabia by the complainant party on the pretext of providing him a job, had been arrested and sentenced to death over there and in order to settle the matter between the parties, the complainant had paid them ninety lacs rupees and, in the instant case, the complainant had fabricated a false story of robbery against the accused. In this back ground, he submitted, the parties were well known to each other and the allegation by the complainant does not appear truthful.
17. The subsequent recoveries of amount, klashincove and 9MM pistol also do not support the prosecution case. It is pertinent to note that the klashincove and pistol with live bullets allegedly recovered vide memo (Ex.PW.5/2) are shown to have been recovered on 03.02.2013 instead of 01.02.2013, when the accused had been overpowered and arrested. This contradiction belies the prosecution version. It becomes all the more important in the context of Question No.4, put to the accused/appellant Momin Khan, which mentions the "said date, time" and that was 01.02.2013 at 14.30 hours on motorway.
18. The presence of complainant on motorway, at that time and date, in his vehicle bearing registration No.YE-599 which was issued on 01.02.2013 vide receipt No.8664371, is also highly doubtful. According to PW.1 the car in which he was travelling on that day was not bearing Registration No. And instead had only a plate of "Applied for". Surprisingly on that date and time the car was at Islamabad before the Excise and Taxation Department (Islamabad Capital Territory), for inspection, checking and issuance of Registration No. He admitted that the registration No. Is 599 and the same is mentioned in (Ex.PW.7/XI). PW 7 has placed on record the registration slip of the said motor car of the complainant but he did not remember as to when and where it was presented to him by the complainant as he had not noted the date in his case-diary, though he admitted its date and time to be correct as shown on (Ex.PW.7/XI). PW.7 also expressed his ignorance about Rs.90,50,000/- which were recovered from the possession of the accused at the time of their arrest but conceded that there was nothing to show as to where that amount had gone. He has also conceded that recovery of the amount of Rs.3,00,000/- as well as the arms weapons were effected on 03.02.2013 i.e. On the third day of the occurrence and that no person from the public was taken to that place to witness the said recoveries. Surprisingly, he also admitted that the recovered items were not made into sealed parcels and were still in open condition. This type of conduct by an experienced official cannot be legally justified in a case which entails capital sentence.
19. The hand cuffs used by the accused/appellants have also not been recovered. It is very strange that PW.2 Shahpur Khan who was accompanying the complainant at the time of occurrence when allegedly they had been hand cuffed, does not make any reference to this very pertinent factor anywhere in his deposition. He also expressed lack of knowledge if that huge looted amount was ever returned to the complainant. His presence on the spot along with the complainant seems highly doubtful.
20. Moreover., it is also pertinent to refer to the site plan (Ex.PB), especially, the places marked 'B' and 'D where motor car of the complainant and Jeep of the accused have 'been shown in opposite directions towards Islamabad and Peshawar respectively. We may also mention that though at some places which may be used for taking "U turn" on the motorway but these are usually blocked, with removable but heavy blocks, for use only in cases of emergencies. The story of prosecution in this respect, as alleged, is also questionable.
21. In addition to this, the medical examination of accused Momin Khan and Shaukat Khan is also worth consideration. PW.8 Dr. Asghar Ali Shah medically examined Momin Khan and Shaukat Khan appellants/accused on 02.02.2013 and found a grazing firearm wound on the forehead of Momin Khan and stated that the weapon used was firearm. He also examined the appellant/accused Shaukat Khan on the same day and found him injured having firearm entrance wound on the right foot. He has, however, not given duration of injuries in both the cases. How and who caused these injuries, has not been clarified by the prosecution and no empties have been recovered from the place of occurrence, as stated by PW.7. It is also shrouded in mystery to prove that when the motorway was fenced on both the sides, how could the appellants/accused make good their escape when according to PW.7 there is no mention in both the site plans that the fence near the spot was broken whereby pedestrians and vehicles could easily pass through. According to the prosecution cross firing had taken place. Since neither any empties were recovered, nor the Forensic Science Laboratory Report (Ex.PK/I) makes any reference to the use of the recovered weapons in the cross firing, nothing could be inferred positively about veracity of the prosecution version.
22. It is also worth mentioning that two of the appellants/accused were police officials namely Momin Khan and Ajab Khan. Learned counsel for the complainant contended that Momin Khan was declared proclaimed offender. We have examined this point in the-light of deposition made by PW.9 Muhammad Fayyaz Khan, SHO who in cross-examination stated that he had got knowledge about accused Momin Khan that he was a proclaimed offender in case FIR No.724 lodged on 08.09.2010 at Police Station Pabbi. The prosecution has, however, not placed on record any document which could show that till the day of occurrence, i.e. 1.2.2013, he had perpetually remained a proclaimed offender. Moreover, a question arises that if he was actually proclaimed offender why he did not arrest him then and there in the aforementioned case also.
23. It is also pertinent to note that, as alleged, the complainant Umar Wahid (PW.1) and Shahpur Khan (PW.2) had proceeded to Charsadda wherefrom they had entered the motorway for Islamabad but the complainant has placed no entry pass on record, nor any other proof worth the name, to prove that he had actually entered the motorway through that entrance. Likewise entry of the accused to the motorway in their jeep, or even their exit therefrom, has also remained un- established on record.
24. Moreover, it is highly pertinent to observe that, admittedly, the recovered amount was not deposited in safe custody anywhere. It has been stated by the PWs that the huge looted amount was returned to the complainant but strangely neither any original receipt was exhibited nor any amount was produced later in the court. The amount was so huge that it actually assumes pivotal role and forms basis of the whole case. Whether it was recovered, or thereafter ever returned to the complainant, is a big question which is not at all established on record beyond reasonable doubt.
The receipt to this effect drafted in a haphazard manner is marked as (Ex.PC dated 10.02.2014). It, inter alia, reveals that the amount was received by the complainant, in presence of two witnesses.
However, not to speak of their signatures, even names of such witnesses have not been mentioned.
Even the date when the said amount was returned to the complainant has not been written over there and, strangely enough, it has not been signed even by the Investigating Officer. One really wonders why the experienced Investigating Officer ignored these pertinent aspects and why did he return the amount, which was the case property, in such an illegal manner. The amount was huge no doubt but its safe custody was much more important for establishing the case of prosecution to show that the story of robbery was not concocted. Once this type of handing/taking over is admitted by the courts of law, every now and then cases will crop up in abundance and persons so nominated would be sent to the gallows. Besides all this, it is strikingly shocking to note that PW.9 Muhammad Fayyaz Khan, Inspector/SI-10 himself produced the copy of receipt regarding the return of recovered/snatched amount of Rs.90,50,000/-, which is (Ex.PC), vide which the said amount was allegedly returned to and received by complainant Umar Wahid. PW.9 himself produced the original receipt and added that the amount was available on that day in the court in the custody of the complainant. This shatters the confidence that could be reposed in deposition made by PW.9. The receipt had not been earlier made part of the record and was thus inadmissible in evidence and could not be accepted as such. The said amount, if it had been actually recovered from the accused, as alleged, was the most important piece of evidence and being a case property, it had to be kept in the custody of the State and duly exhibited in the court. The above receipt thus obviously appears fake and fictitious.
25. In view of the above it cannot be said with judicial certainty that the huge amount in question was ever looted by the appellants/accused or that the complainant had actually entered the motorway in the said car which was being registered at the same time and date in Islamabad.
Needless to say, that the burden of proving its case is always the duty of prosecution and it has to stand on its own legs but if there is any doubt about material aspects of the case, the benefit should go to the accused. We may add that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of an accused then the accused will be entitled to get the benefit thereof and that too not as a matter of grace and concession but as a matter of right.
26. The upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentences of the appellants/accused, this appeal is allowed. Conviction and sentences of the appellants/accused namely Momin Khan, Ajab Khan, Muhammad Zaib and Shaukat Khan are set aside and they are acquitted of the charges. They are confined in jail and, therefore, they shall be released forthwith if not required in any other case.
27. As a sequel to the above, Criminal Revision No.3/P of 2014 filed by the complainant for enhancement of sentences is dismissed.
28. These are the reasons of our Short Order dated 28 04 2015.