This appeal under section 410, Cr. P. C. Is directed against the judgment dated 12th February, 1980 of the learned VII Additional Sessions Judge, Karachi, whereby he acquitted co-accused Badshah Khali and convicted the appellant under section.-394, P. P. C., and sentenced him to suffer R. I. For 4 years and also to pay a fine of Rs. 1,000 or in default of payment of fine to undergo R. I. For 6 months more.It was further ordered that out of the fine if realized, a sum of Rs. 500 only be paid to the complainant Ahmed Munia as compensation under section 544-A, Cr. P. C.
2. The appellant was also convicted under section 13-E of the Arms Ordinance to undergo R. I. For one year. He has separately appealed against his conviction and sentence. I will dispose of both the appeals by this judgment. The facts of the prosecution case are stated in the F. I. R., lodged by one Ahmad Munia son of Muhammad Suleman, resident of House No. 3-E-7, Nazimabad, Karachi on 4th September, 1976 under section 392/34, P. P. C. At 11-20 p. m., at Police Station S. I. T. E., Karachi which reads as under:- "I am residing at the above address and am employed as Cashier in Dada Bhoy Ceramic Industries Ltd., S. I. T. E. Today, in the morning I had come to Habib Bank S. I. T. E. (Branch) from Nazimabad to get cheque No. ADL-7490 (Illegible) amounting to Rs. 55,000 encashed, in favour of "Seth", which was encashed. At about 9-15 (a.m.), I put Rs. 55,000 the encashed amount of cheque, in my black leather bag and by making a Telephonic call to my factory, I got the car brought at Habib Bank S. I.
T. E. (Branch). At about 09-25 hrs. Driver Rasool Bux reached the Bank by driving car No. K. C. C./20.5 from the factory. 1 sat myself on the front side seat of the car by the side of Driver Rasool Bux, taking Leather Bag with me, which contained money and we were coming to the factory in the car from the side of "Dilshad" Cinema. When the car reached near Dada Bhoy Ceramic Industries Ltd., and Alaamgir Rayon (Mills) then a taxi came from the front side and stopped in front of our car. Driver Rasool Bux stopped the vehicle ; in the meantime, three persons got down from the taxi and came towards our car. One' stood in front of the car, one towards me and the remaining one stood towards Driver and aimed a revolver by taking out the same and asked me, "Give this bag to us". I refused to hand over the bag to them, whereupon, one person who was standing towards me gave me two fist blows on left side of my mouth, and as a result of which my lip was cut, then he forcibly snatched from me, my leather bag which contained money. The fourth (person) in the taxi was driver, who remained sitting in the taxi and I saw him from (words) illegible. Thereafter, all of the aforesaid three persons sat in the same taxi and started running-the taxi towards "Dilshad"
Cinema. I chased the accused persons also upto a very long distance but 1 could not catch the taxi. The taxi disappeared from the side of Vilika. The number of taxi appeared to be Like K. A. Z.
4850 while a piece of paper was pasted on the other figure after the figure of 4. Descriptive Roll of the accused persons :-
(1) Fair complexion, wearing white trousers and shirt, tall height. (2) Fair complexion, wearing trousers and shirt of (illegible). All the three; appeared to be "Pathan" from their appearance. After this, I reached my factory searching them and narrated all the facts to "Seth Sahib", who asked me that I should lodge the report. My complaint ag4inst the aforesaid accused persons, is for, snatching away from me, forcibly, my Leather Bag which contained Rs. 55,000. Action be taken".
3. The F. I. R., Exh. 11 was recorded by S. I. P., Fasahat Hussain P. W. 8 of Police Station S. I. T. E. But the investigation was conducted by the Inspector C. I. A., Karachi Muhammad Yar Khan P. W. 11 who received the information through police control about this robbery and he alongwith his party proceeded to the Excise and Taxation Office to enquire about the vehicle registered under No. K. A.
Z. 4858 where he was informed that no such taxi under the above number was registered. He however during the course of investigation came to know that the Taxi which was used in commission of crime was registered under No. K. A. Z. 4958 and was being owned by one Dilbarshah (P. W. 3). He made search for the owner Dilbarshah and came .To know from him that the taxi in question was taken away by one Rahim Khan Driver. The taxi was found abandoned near New Town Masjid Jamshed Road at about 6 p. m., which was recovered under Mashirnama Exh. 16.
He inspected the scene, of offence and prepared such Mashirnama Exh. 27 in presence of ashirs Malik Muhammad Tufail and Mirza Arshad Baig on 5th September, 1976. He on 15th September, 1976 proceeded alongwith police party to Ajmeri Hotel at City Railway Colony near Hanfia Masjid on spy information and arrested the appellant Qalandar Khan in presence of Mashirs Zahoor and Haji Allahdia. He recovered a leather bag from possession of the appellant Qalandar Khan and found Rs. 33,300 from it. The amount was in currency notes bearing stamps of Bank as well as signature of the Habib Bank employee. He also secured one revolver and six live cartridges loaded in the revolver and other 20 live cartridges in all twenty-six live cartridges from possession of the appellant. He secured the currency notes, revolver and the cartridges and prepared such Mashirnama as Exh.
18. He thereafter registered a case under section 13-D, Arms Ordinance against the appellant. He then recorded statements of witnesses and started search for the remaining three accused and sent A. S. I. P., Resham Khan for arrest of co-accused to Swat who arrested the co-accused Sharif from Swat and recovered a cash of Rs. 10,800 from him. He then produced the co. Accused Sharif and Qalandar Khan for identification test through P. Ws. Ahmad Munia and Rasool Bux. He also arrested co-accused Badshah Khan and thereafter challaned the accused in the Court.
4. The prosecution case is mainly based on ocular testimony of the complainant Ahmad Munia and Rasool Bux, corroboratory evidence of P. Ws. Dilbar Shah and Mirawal Shah, recoveries of cash of Rs. 33,300 and revolver, evidence of Muhammad Rafiq, identification test before Mr. Nazir Ahmed Abbasi and a circumstance of the injury on person of the complainant.
5. The accused however, denied the allegations and stated that he was shown to the witnesses by the police before identification test was held. He has further stated that he was arrested from the house of his father-in-law Hakim Shah on the night between 10th and 11th of September, 1976 and was taken to Police Station where he found his brother Shah-Zarin already there. The police then called his father-in-law and his wife to the police station. The police on 11th September, 1976 also called brother of his father-in-law and his "Sala" Faqir Muhammad at police station and demanded Rs. 55,000 for their release and his father---in-law paid Rs. 15,000 while his brother Shah-Zarin paid Rs. 15,000. Qalandar Shah, who is brother of his father-in-law paid Rs. 3,000 while a sum of Rs. 300 was taken away by police from his pocket. The policemen were sent with his relatives for the amount in question. It was only after the above amount was paid to police when his relatives and wife were freed. They could not pay more money as demanded by the police and it was on account of it that he has been falsely involved in this case. The revolver was secured from him which was a licensed one and was given to police by Qalandar Shah. He has also examined - D. W., Hakim Shah and Shah Zarin in his defence.
6. 1 would first of all examine and assess the ocular testimony. The complainant Ahmed Munia (P.
W. 1) has supported the prosecution case as put in by him in his F. I. R. He has however admitted before the trial Court that the person who put the revolver on neck of the driver was not among those who were being tried in the Court. He has also stated that those two persons who demanded bag from him and on his refusal to give the bag, one of them tried to snatch it from his hand but did not succeed and the other one gave him a fist blow on his face, were also,not present in the trial Court. He has also admitted that he was put to identification test in which he identified two persons out of them he suspected the present appellant Qalandar Khan to be one who was among the four culprits. He has also admitted that he had seen Qalandar Khan in jail with police within 15 days of the securing notes. The other eye-witness Rasool Bux P. W. 7 who was driving the car has supported the prosecution case to the extent of robbing of the bag from the complainant Ahmed Munia at the point of revolver by the culprits and running away alongwith it in a taxi-car, the complainant Ahmed Munia informing him on their. Way to factory that there were Rs. 55,000 in the bag which was snatched by the culprits and narrating the facts to Seth Adam Dada who advised the complainant to lodge report. He has also stated that he was put to identification of the accused in the test about six weeks after incident in which he picked out the accused Qalandar Khan and Sharif as culprits though they were not known to him prior to this incident.
7. Mr. Nazir Ahmed Abbasi (P. W. 13) who was A. C. M: at Karachi (West) has supervised the identification test of the appellants Qalandar Khan and one Muhammad Sharif who were picked out in test at Central Jail Karachi, by complainant Ahmed Munia and Rasool Bux (Driver).
8. Azam Ahmad Dadabhai (P. W. 2) is the Director of the Dadabhai Ceramic Industries, where the complainant Ahmad Munia was working as a cashier. He has supported the prosecution case to the effect that he had sent the complainant to withdraw a sum of Rs. 55,000 from the bank and the complainant afterwards informed him of the robbery and the amount snatched from him at the point of revolver. He has also stated that the bag shown to him belonged to him as his name was written on it though such bags were available in market.
9. The corroborative witness Dilbar Shah ('P. W. A) has stated before the trial Court that the present accused Qalandar Khan and one Rahim Khan had taken his taxi No. K. A. Z. 4958 on the fateful day and he came to know afterwards that dacoity was committed by using his taxi-car. He therefore searched for his taxi which was found near New Town Mosque Jamshed Road. It has also been admitted by him in cross-examination that the appellant/accused Qalandar Khan was not known to him prior to this incident. Mirawal Shah (P. W. 4) however does not support this witness if Qalandar Khan was also with Rahim Shah when the latter got taxi-car from Dilbar Shah. Syed Ghufran Shah (P.W. 5) is a mashir for securing the taxi-car from the place opposite Jamia Masjid New Town and he has stated that the taxi in question was secured by the police under a mashirnama Exh. 16 from the place opposite to Jamia Masjid Town.
10. Allahdiya (P. W. 6) is a mashir of recovery of currency and revolver from the possession of the accused Qalandar Khan and he has stated before the trial Court that the bag containing money was secured from the accused/appellant Qalandar Khan when he was taking meals at his hotel.
When he was asked in the Court to see as to which person was sitting at the hotel, he pointed out to other persons and could not point out to accused Qalandar Khan, who was asked to get up thereafter and he pointed out that he was the same person who was sitting at his hotel and the bag was lying by his side when he was eating meals. He was arrested from there by the police and the bag was secured from him and opened there which contained currency notes amounting to Rs. 33,000. Such mashirnama Exh. 18 was prepared there and he had signed it. He has also admitted that he has acted as a mashir in many police cases but he cannot give the number. He did not remember if police took signature from any one else on the mashirnama. He also did not know a person by name Zahoor.
11. Zahooruddin (P:W. 10) is a co-mashir with Allah Diya (P. W. 6) who has stated before the trial Court that accused Qalandar Khan was arrested at Ajmeri Hotel near Railway Gate at about 7 or 8-
00. p.m., and a bag containing Rs. 33,300 currency notes was also secured from him and so also a loaded revolver with six live cartridges and twenty other live cartridges. He has however admitted in cross-examination that he was resident of Liaquatabad in block No. 6, but he used to reside at railway quarters at the time when he acted as a mashir in this case.
12. The other important witness for recovery is Muhammad Yar Khan Inspector C.1.A, who has supported the recoveries from the appellant in toto.
13. Dr. Ali Hasan (F. W. 9)'C. M. O. Of Abbasi Shaheed Hospital, Karachi, has examined the complainant Ahmed Munia who was brought by P. C. Muhammad Amin of Police Station S. I. T. E.," to him and he found two injuries on his person and provided treatment to him.
14. Muhammad Rafique (P. W. 12) is working in the Habib Bank S.I.T.E. Branch. .He has stated before the trial Court that the notes shown to him in the trial Court, in bundles, with signatures on the first and the last G.C. Note of a bundle are signed by him and all the bundles are bearing his signatures. .
15. Mr: Abdul Aziz Khan, the learned counsel for the appellant contends that there is delay of 2 hours in lodging F. I. R. And there is no explanation for it. He has also contended that the incident had taken place on 4th September, 1976 and the appellant has been arrested on 12th September, 1976 and put to identification test after one month and 19 days of the incident which casts shadow of doubt on the test. Moreover there is no proper ratio of dummies mixed with the appellant and one another at the time of identification test. Therefore, such test is valueless. He has relied upon PLD 1961 Kar. 728. It has also been contended by him that mashir Haji Allahdia is a police pet who has acted as mashir in many cases and he did not know as to who was the co-mashir with him.
Therefore, his testimony cannot be accepted. As far as co-mashir Zahboruddin is concerned, the learned counsel has contended that he did not know the quarter and block where he lived at the time when he acted as a mashir in this case. Therefore, he too was a fictitious person and his testimony cannot be accepted. It has also been contended by the learned counsel that the appellant was said to be putting up with his father-in-law at the time of his arrest and there was no occasion for him to go to a hotel for taking meals and also carry such a big amount with him.
Moreover on 4th September, 1976 corresponded to 9th of holy month of "Ramazan" and 12th September, 1976 to 17th of "Ramazan" and the appellant and his father-in-law being Muslims it was not in fitness of things that appellant would be going to a hotel for meals. The learned counsel bas also contended that P. W. Dilbar Shah did not know the appellant before the incident and he was not put to identification, therefore, his evidence will be of no consequence. Mirawal Shah P. W. Has not involved him. It has been lastly contended by the learned counsel for appellant that the appellant has been convicted under section 394, P. P. C. As well as 13-E of Arms Ordinance but while awarding sentences the trial Court has not ordered that the sentences to run concurrent though the offence under section 13-E was also a connected offence with the offence of robbery. He has therefore contended that it would be in the interest of justice to order for running of sentences concurrently in case the appeal failed. He has relied upon. PLD 1977 Kar. 833.
16. As far as appeal against the conviction and sentence under section 13-E of Arms Ordinance is concerned, the learned counsel has contended that Allahdiya mashir is a police pet whereas it is highly doubtful if co-mashir Zahooruddin belonged to the locality as his evidence does not inspire confidence. There being no respectable person from the locality supporting the prosecution case, the appellant is entitled to benefit of doubt.
17. Mr. A. A. Dareshani, the learned counsel appearing for the State has very frankly stated that he did not support the conviction of the appellant under section 394, P. P. C. As the prosecution has not proved the case for offence under section 394, P. P. C. Beyond reasonable doubt against the appellant. He has however pressed for conviction of the appellant for offence under section 411, P. P.
C. Which has been successfully proved against the appellant. The evidence of Muhammad Yar Khan Inspector and mashir Zahoorudin is reliable and there are valid reasons to accept their version. There is no doubt that the offence of robbery has been committed during a broad daylight but the prosecution has not been able to prove it beyond reasonable doubt against the appellants.
The identification test suffers from infirmities and it cannot be accepted. He supports the conviction and sentence awarded to the appellant under section 13-E of Arms Ordinance as the evidence for this offence is also same as for recovery of amount from the appellant. It is worthy of reliance and there is nothing to reject it.
18. I have considered the contentions of the learned counsel for the appellant as well as State. I have also gone through the citations referred to by the learned counsel for the appellant. The evidence led by the prosecution for offence of robbery against the appellant does not inspire confidence because even the complainant Ahmad Munia's testimony is such that it dose not satisfy if the appellant was one of those culprits who participated in commission of the offence of robbery. The complainant at one stage says that a person who put revolver on neck of the driver was not among those who were present in the Court and were being tried and at another stage he has stated that those two persons who demanded bag from him and on his refusal, one of them gave fist blow to him and another one succeeded in taking it away, were also not from the accused persons. Rasool Bux (P. W. 7) has also not given any specific part to the appellant at the time when robbery was committed. The identification test is belated one and suffers from infirmities as rightly stated by the learned counsel for the appellant. I am, therefore, convinced that no offence under section 394, P. P. C., is made out against the accused appellant. As far as evidence for offence under section 411, P. P. C. And 13-E of Arms Ordinance is concerned, there is evidence of the Inspector Muhammad Yar Khan, mashirs Zahooruddin, Allah Diya and Muhammad Rafique (P. W. 12) which is worthy of credence and is being accepted by me. The recovery of the cash. Which is in bundles and first and the last note of the bundles is signed by Mohd. Rafique P. W.
12 who has supported the prosecution and the recovery of such a huge amount being within about a week's time from the day of incident leads to only conclusion that it was the stolen property which was dishonestly received and retained by the appellant. The defence witnesses have not been able to inspire confidence. If their version even for a moment is accepted, it would be very difficult to believe that they would remain there for all this long period without making any complaint to any one for such highhandedness of the police till they were examined in defence-in the Court. I do not find their evidence worthy of credence and therefore do not accept it. The evidence of the Inspector and the mashirs for offence under section 13-E of Arms Ordinance is also accepted under the circumstances of the case though there are minor discrepancies in evidence of mashirs. But the evidence as a whole cannot be thrown out p when it is examined keeping in view the circumstances of the case. The prosecution has successfully proved the guilt of the appellant for offences under section 411, P. P. C. And 13-E of Arms Ordinance. Therefore conviction of the appellant under section 394, P. P. C. Is altered to on under section 411, P. P. C. And his conviction under section 13-E, Arm Ordinance is maintained. As far as sentences are concerned, the appellant has remained in custody ever since his arrest on 12th September, 1976 and has served out the sentence of about ten months after his conviction on E 12th February, 1980. I think it would serve the ends of justice to hold that the sentence undergone is sufficient in view of his detention in custody for a period of more than three years.
19. In the result, his appeals are dismissed with modification of altering his conviction for offence under section 394, P. P. C. To one under F, section 411, P. P. C. And maintaining the conviction under section~13-E, Arm Ordinance for the sentences undergone under the circumstances of the case, He shall be therefore released forthwith if not required in any other case.