Rashid Aziz Khan, J.- Abdul Sattar, aged 30 years, and Abdul Razzaq, aged 25 years (absconder) were tried by Special Court for Speedy Trials No. VIH, Sargodha, for an offence under section 392 PPC. The learned trial Court vide its judgment dated 2.2.1988 found both of them guiIty and sentenced them to 10 years R.I. Each and a fine of Rs.10,000/- each, or in defauIt 2 years R.I. Each.
Abdul Sattar was also given the benefit of section 382-B Cr.P.C. Later on,Abdul Razzaq was also arrested. Both the convicts have appealed against their convictions and sentences through separate appeals. This judgment shall dispose of both the appeals.
2. The prosecution story, in brief, as disclosed by complainant Major (Retd.) Sikandar Javed is that he along with the witnesses took a boating trip from jahangira, District Peshawar on 28.11.1984 in river Sind. On 5.12.1984 they reached near Kalabagh when at about 11 a.m., Major (Retd.) Sikandar with Farman Ali was sitting in a smaller boat and were ahead of the other bigger boat in which his companions were sitting. When the distance between the two boats was about a mile, he looked at the bigger boat through binoculoars and found that the boat had stopped on the western bank of the river within the area of Darazwala. The complainant also turned his boat back and reaching near it, asked them why they had stopped. He was informed by his companions that two armed persons had robbed them of their belongings consisting of a. 12 bore gun, a pistol. 22 bore, 500 cartridges of.12 bore, cash of Rs.14,000/-, one binocular, one tape-recorder and a driving licence.
The explanation given by him for lodging the FIR with a delay of two days is that he kept on looking for the accuesed persons and the robbed articles himself.
3. Complaint Exh.PA was lodged by Major (Retd.) Sikandar Javed on 7.12.1984 at 1.40 p.m. With regard to an offence which took place on 5.12.1984 at 11 a.m. It was recorded by Sher Muhammad, SHO, Police Station Qamar Mashani, PW-9, in the area of Khudozai. Formal FIR Exh.PA/1 was recorded by Kafayatullah, Head Constable at the P.S. Qamar Mashani on the same day.
After recording the statement Exh.PA, Sher Muhammad Bochhra, S.I. Went to the place of occurrence and prepared rough site-pain Exh.P. He recorded the statements of some witnesses under sectin 161 Cr.P.C.
The case was also investigated by Sher Muhammad, Inspector, PW10. He arrested Abdul Sattar accused on 8.9.1986. On 18.9.1986 he held the identificatin parade in respect of Abdul Sattar in the Central Jail, Mianwali. He got recovered gun P.l at the instance of Abdul Sattar on 27.9.1986 and took the same into possession vide memo Exh.PB. He recorded the statements of the witnesses under sectin 161 Cr.P.C. Since Abul Razzaq accused was an absconder, therefore, he submitted the challan against him under section 512 Cr.P.C.
4. The prosectution in support of its case has produced 10 witnesses in all. Major (Retd.) Sikandar Javed, PW-1 has corroborated the FIR, as lodged by him. In Gourt he has however stated that when he found his companions not following him, he went back and asked them in Pashto what they were waiting. His companions told him that two armed persons had robbed them of their belongings. He has furhter stated that they also asked him not to come near them as the persons might be hiding in the jungle. He went to village Khudo Zai and spent the night there. The next morning he again started for the search of his companions but could not trace them, therefore, went back to village Khudozai to spend the night.
On the following day he did not go to the place of occurrence as he had been warned by the local people that the culprits might harm him. He saw his companions in the darkness and they informed him that they were quite safe and would join him the next morning. On his enquiry, he was told about the articles that had been robbed of. Thereafter, on 7.12.1984 he met the S.I. And made the statement Exh.PA. Muhammad Muqrab Khan, ASI,PW-2 witnessed the recovery of gun P.l at the instance of Abdul Sattar appellant. Said Bargul, PW-3 has given an eye-witness account of the occurrence the way it happened. He was in the bigger boat along with his companions when they were robbed by two persons. According to him, two persons standing on the river bank asked them to bring the boat to the river bank. When they came near the bank, both of them asked them to come out of the boat, and thereafter thery were robbed of their belongings, as given in the FIR; and after the occurrence, both of them disappeared in the jungle. He had also identified Abdul Sattar in the identification parade in Mianwali Jail. Saleh Muhammad, PW-4 is also an eye-witness, and was in the bigger boat which was subjected to robbery. He has corroborated the statement of PW-3 Said Bargul. He also identified Abdul Sattar accused. Said Rasool, PW-5 (F.C.No.644) was entrusted with the non-bailable warrants of arrest of Abdul Razzaq and Abdul Sattar on 16.4.1985.
Both of them were not available, therefore, he gave report to that effect vide Exh.PC/1 and Exh.PD/1.
Muhammad Amin Khatak, PW-6 (Magistrate 1st Class) supervised the identification parade in respect of Abdul Sattar on 18.9.1986. Alam Khan, PW-7 has stated that on the day of incident he saw the appellants armed with guns standing on a river bank. Within his presence and view the appellants robbed the persons sitting in the boat in the river Sind. Saifullah, PW-8 also saw the appellants robbing the persons sitting in the boat. At that time he was accompanied by Alam Khan PW. Sher Muhammad Bhochra, PW-9 recorded the complaint Exh.PA and partly investigated the case. Sher Muhammad, Inspector investigated the case, arrested the accused and submitted the challan.The learned prosecutor gave up Feroze Khan, ASI and Muhammad Gul, PWs, as unnecessary. Kafayat Ullah PW was given up as having died.
5. At the conclusion of the prosecution evidence Abdul Sattar appellant was examined without oath wherein he denied every incriminating evidence agianst him. He further pleaded that he had been involved in this case because of the enmity of the PWs. Abdul Razzaq was tried in absentia, therefore, the learned counsel representing him made a statement denying all the allegations against him.
6. It is contended by learned counsel for the appellants that the case against the appellants has not been proved because the identification parade was held after one year nine months and thirteen days of the occurrence, therefore, no importance can be attached to the same. Submits that the recovery of gun. P.l was made from a public place and it was not witnessed by any-one from the public, therefore, it is highly doubtful. Submits that the absoconding of both the appellants cannot be used as corroboration, because at the time of commission of the offence they were already absconders in another case.
Contends that the statements of Alam Khan and Saifullah, PWs-7 and 8, respectively, cannot be relied upon because they are neither mentioned in the FIR nor their statements were recorded immediately after the incident. Submits that as far as Abdul Razzaq appellant is concerned, there is no evidence whatsoever which connects him with the commission of the offence. The learned counsel for the State has refuted the submissions of the learned counsel for the appellant and submitted that the prosecution has been able to prove its case beyond doubt through the ocular account furnished by Said Bargul and Saleh Muhammad, PWs 3 and 4, respectively, corroborated by Alam Khan and Saifullah, PWs.
7. We have heard the learned counsel at length and gone through the evidence with their assistance. The occurrence in the instant case took place on 5.12.1984 at 11 a.m. And the case was got registered on 7.12.1984 at 01:40 p.m. The explanation given with regard to the delay in the FIR is that the frist informant Major (Retd.) Sikandar, PW, kept on searching for the culprits therefore, the delay. However, in Court the witness has taken completely a different stand by stating that he could not come in contact with his companions who had been robbed, for three days, therefore, the delay in the FIR. We have carefully examined the statement of PW-1 and have reached the conclusion that the witness has improved upon the version given in the FIR to an extent that no reliance on his statement can be placed. In the FIR he had mentioned that he looked through the binoculars and saw that his companions had taken the boat on the western side of the river bank, and in the same breath he had mentioned that some unknown persons had robbed his companions of binoculars as well. In Court he realized the mistake, therefore, improved upon the story by saying that when he found that his compainions were not following him he went back and saw them on the river bank. He was confronted with this improvement, but had no answer.
Sismilarly, in the FIR h.e had mentioned that he asked his companions why they had stopped, and was informed that two unknown persons had robbed them. But in Court he stated that he got the information from his companions on the third day of the incident. If this be so, then there is no explanation as given in the FIR, that he kept on searching the accused and his belongings, because till that time he was not even aware of the articles his compainions had been robbed of. Even otherwise also, the conduct of the witness is extremely unnatural, therefore, no reliance on this statement can be placed. ResuItantly, it is held that the FIR was got registerd with a considerable unexplained delay, therefore, it cannot be relied upon.
8. The eye-witness account has been furnished by Said Bargul, Saleh Muhammad, Alam Khan and Saifullah PWs-3.4,7 & 8, respectively. As far as the statements of Alam Khan and Saifullah, PWs-7 and 8, are concerned, they are ruled out of consideration on the sole ground that they claimed to have witnessed the occurrence yet their statements under section 161 Cr.P.C, were recorded 3 months after the incident. There is no explanation why their statements were not recorded earlier.
In cross- examination, both of them have admitted that the police did go to their village in connection with investigation of this case, yet they never chose to state that they had witnessed the occurrence. In cross-examination, their enmity with the appellants has come on the record.
Therefore, in the background of the enmity coupled with the delay in recording their statements, we hold that it would not be safe to rely upon them; their statements are ruled out of consideration.
9. Said Bargul and Saleh Muhammad PW-3 and 4 were in the boat at the time when it was robbed by two unknown persons. In their statements before the Court they have given a detail of the occurrence the way it transpired. Said Bargul had identified Abdul Sattar in the identification parade as well. Both the witnesses have been cross-examined at length. During cross- examination, Said Bargul PW-3 was shown a photograph Exh.Dl of a person, to which he stated that the person in the photograph had robbed them of the articles in the boat. It has come in the evidence through the statement of the I.O. That the photograph Exh.Dl was of one Amir Ganda. In these circumstances, when the witness, even in the Court, was not sure as to who had committed the offence of robbery, therefore, we have no hesitation to hold that as far as the identification in respect of this witness is concerned, no reliance on the same can also be placed. As far as Saleh Muhammad is concerned, he has given a detailed account of the occurrence the way it transpired, In cross-examination, he had stated that he had given the description of one of the culprits as short height, who had robbed them of their belongings, while the other perosn of medium height kept on standing at a distance of 20 yards from them. He also admitted that the place where the occurrence took place was a thick jungle. In these circumstances, it will be difficuIt to believe that the witness was in a position to identify the culprit who was standing at 20 yards in the thick jungle.
In Court he stated that the accused robbed them of a gun, cartridges, tape recorder and cash worth Rs.14,000/-, but, surprisingly, these articles were not mentioned in his statement under section 161 Cr.P.C, to which he was confronted. This witness has given a different story from Said Bargul, PW about the manner the occurrence took place. In these circumstances, both the witnesses have contradicted each other on material aspects of the case, therefore, no reliance on their statements can be placed.
10. It is therefore, held that the statements of the eye-witnesses do not inspire confidence, therefore, it would not be safe to rely upon the same. There is no explanation with regard to the delay in the registration of the case. The eye-witness account cannot be relied upon, because, even in Court the witnesses were not certain as to who had committed the offence. The recovery of gun P.l at the instance of the appellant cannot be relied upon because the same was not recovered from a place in exclusive possession of the appellant, and no witness from the public was associated in the same.
11. For what has been discussed above, we hold that the prosecution has not been able to prove its case beyond doubt, therefore, giving the benefit of doubt we accept the appeals of Abdul Sattar and Abdul Razzaq, and acquit both of them. They shall be released from custody forthwith, if not required in any other case. Gun P.l shall be given to Major (Retd.) Sikandar Javed, complainant.