'Appellants Amanullah, Abdul Majeed, Bhooral Shah, Gambo alias Ghazi and Ghullam Nabi were tried alongwith absconders Sultan alias Aslam alias Azeem, Gul Baig, Haji, Sohno, Hadoo and Bulund by Mr. Nazar Muhammad Shaikh, Judge, Special Court for Speedy Trials, Sukkur, for the offence under sections 148, 395, 396, 342, 353, 427 read with section 149, P.P.C. Who vide judgment dated 15-10-1988, found the appellants guilty and sentenced them as follows:-
(i) Under section 148, P.P.C. Read with 149, P.P.C., to suffer R.I. For one year and to pay a fine of Rs,500 each or in default to suffer R.I. For three months.
(ii) Under section 395, P.P.C. Read with section 149, P.P.C. To suffer R.I. For seven years and to pay a fine of Rs,50,000 each or in default to suffer R.I. For two years.
(iii) Under section 396, P.P.C. Read with section 149, P.P.C. To suffer imprisonment for life and to pay a fine of Rs,20,000 each or in default to suffer R.I. For one year.
(iv) Under section 342, P.P.C. Read with section 149, P.P.C. To suffer R.I. For six months and to pay a fine of Rs,200 each or in default to suffer R.I. For one month.
(v) Under section 353, P.P.C., read with section 149, P.P.C. To suffer R.I. For nine months and to pay a fine of Rs,300 each or in default to suffer R.I. For one month.
(vi) Under section 427, P.P.C., read with section 149, P.P.C. To suffer R.I. For nine months and to pay a fine of Rs,300 each or in default to suffer R.I. For one month.
' The substantive sentences awarded to appellants were ordered to run concurrently. Rs,20,000 out of fine, if recovered, were ordered to be paid to legal heirs of deceased H.C. Abdul Majeed, as compensation. Appellants, Amanullah, Abdul Majeed, Bhooral Shah and Gambo have challenged their conviction and sentence in Appeal No,173 of 1988, while appellant Ghulam Nabi has filed separate appeal being No, 185 of 1988. Both the appeals were heard together and were allowed by a short order, dated 8-2-1989, and I now proceed to record the reasons for the said short order.
2. It is alleged that on 15-7-1986, at about 1-30 a.m. The above appellants alongwith absconding accused Sultan alias Aslam alias Azeem, Gul Baig, Haji, Sohno Hadoo and Bulund armed with kalashnikovs and rifles went to Sub-Treasury, Garhi Khairo and overpowered the police officials posted there. They broke open the locks and committed dacoity of Rs,16,54,900 lying in the safe.
During the course of the dacoity they also killed H.C. Abdul Majeed who was on duty there. The culprits while leaving also looted the arms lying there. The report of this incident was lodged by Ghulam Nabi P.C., who was on duty at the strong room of the Sub-Treasury. He was, however, made an accused and was tried alongwith others and convicted accordingly.
3. At the trial the prosecution has examined Muhammad Akram A.S.I. (P.W.1) Muhammad Akram A.S.I. (P.W.2), Muhammad Din Tapedar (P.W.3), Muhammad Shaban P.C. (P.W.4), Badruddin Mukhtiarkar (P.W.5) Allandino Solangi Mukhtiarkar (P.W.6), Dr. Muhammad Kabeer (P.W.7), Ghulam Muhammad (P.W.8), Muhammad Mithal P.C. (P.W.9), Gharib Nawaz P.C. (P.W.10), Muhammad Bachal H.C. (P.W.11), Muhammad Sadique P.C. (P.W.12), Sikandar Shah A.S.I. (P.W.13), Bakhtiar Hussain Shah S.H.O. (P.W.14), Muhammad Azeem (P.W.15), Muhammad Nawaz Lund S.D.P.O. (P.W.16), Sahib Shah S.I.P. (P.W.17) and Abdul Majeed A.S.I. (P.W.18).
4. The case of the appellants was one of denial and false implication by police. They also examined themselves on oath, thereby disputing the allegations.
5. On the assessm ent of evidence available on record, the learned trialJudge found the appellants guilty for the aforesaid offence and convicted them accordingly.
6. I have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellants and Mr. K.M.
Nadecm, learned counsel for the State. The latter has not supported the conviction recorded against the appellants.
7. The case of the prosecution mainly rests upon the ocular testimony consisting of Muhammad Mithal P.C. (P.W.9), Gharib Nawaz P.C. (P.W.10) and Muhammad Sadique P.C. (P.W.12). On the relevant night they were sleeping near judicial lock-up Garhi Khario, when they were awakened by nine dacoits who were standing with appellant Ghulam Nabi P.C. Who was on guard duty at the relevant time. They were taken to guard-room where they were confined by the culprits who were armed with kalashnikovs and rifles and who committed the murder of H.C. Abdul Majeed when he tried to pick up a rifle. According to Muhammad Mithal P.C. (P.W.9) and Ghari Nawaz P.C. (P.W.10) they had identified appellant Bhooral Shah and Abdul Majeed at the time of incident as they used to visit judicial lock-up previously. Muhammad Sadique P.C. (P.W.12) while supporting both Muhammad Mithal P.C. (P.W.9) and Gharib Nawaz P.C. (P.W.10) has stated in clear terms that he was able to identify appellant Bhooral Shah, Abdul Majeed and Gambo who were known to him previously. The evidence of these witnesses also shows that all of them were rescued by Mukhtiarkar and F.C.M. Ghari Khario immediately after the culprits decamped and they had an opportunity to apprise the police officers and the Mukhtairkar and F.C.M. Ghari Khairo about the actual facts of incident. It is also admitted by Muhammad Mithal P.C. (P.W.9) that the S.H.O. And S.D.P.O. Had taken Ghulam Nabi P.C. (not appellant) for lodging F.I.R. Even after they had apprised them of the actual facts leading to this incident. Both these pleas are destructive to each other and in case the above three witnesses had noticed appellant Ghullam Nabi P.C. Standing with the dacoits, there was no occasion for the Police Officers to direct him to lodge F.I.R. Again if these witnesses were able to identify three of the above appellants, their names should have been disclosed in F.I.R. The identification of appellant Amanullah by these witnesses in the identification test has got hardly any evidentiary value. Admittedly appellant Amanullah was in police lock-up before the actual test was held. The possibility that the above witnesses who are police officials had seen him in lock-up prior to the test, therefore, cannot be ruled out. Ghullam Muhammad (P.W.8) who has acted as Mashir was constrained to admit about it in his cross-examination. The value of identification test depends mainly on two important factors, namely, that the persons who identify an accused have had no opportunity of seeing him prior to the actual test, and secondly that no mistakes have been made by the witnesses.
8. Likewise the identification of footprints of appellant Amanullah in the footprints test held through police tracker can be discarded for the aforesaid reason. Such an evidence can only be relied upon as a circumstance which alongwith other circumstances, would lead to the identity of the culprits. This evidence by itself is not sufficient to carry conviction in the mind of Court.
9. The prosecution has then placed reliance upon judicial confessions of all the appellants except Gambo recorded by Allandino Solangi Mukhtarkar and F.C.M. Jacobabad, who claims to have recorded the same after observing legal formalities and removing the appellants from the influence of police. Allandino Solangi who was examined as (P.W.6), has recorded the confessions of appellants on the following dates:-
(a) Amanullah 3-9-1986.
(b) Ghullam Nabi 7-9-1986.
(c) Bhooral Shah 18-9-1986.
(d) Abdul Majeed 27-9-1986.
' According to the case of the prosecution appellant Amanullah was arrested on 20-8-1986 from Sukkur and he was produced before Mukhtarkar and F.C.M. Jacobabad on 3-9-1986, who recorded his judicial confession. The rest of the above four appellants are said to have been arrested on the same day when they were produced before the Mukhtarkar and F.C.M., Jacobabad. The record, however, shows that these appellants were arrested much earlier than shown by the police. Gharib Nawaz P.C. (P.W.10) admits so in his cross-examination:- "It is correct that police arrested the accused Ghulam Nabi on the day of incident at about 5 a.m.
Police had arrested the accused Bhooral Shah within week after the incident."
10. Ghulam Muhammad (P.W.10) who was all along associated with the investigation of this case and is admittedly a relative of Muhammad Nawaz Lund S.D.P.O. (P.W.16) has also admitted about it in the following words:- "Police arrested accused Amanullah after 8 or 10 days of the incident. Police had arrested the accused Bhooral Shah on 6th or 7th day. I had seen Bhooral Shah under arrest at P.S. Kashmore.
Accused Abdul Majeed was arrested about 8/10 days after the incident."
11. All the above appellants have retracted from their confessions. Such confessions which are procured on the basis of dishonest investigation have got no value. The cases reported as Muharram v. The State 1968 P Cr. L J 1550, Muhammad Nasim Agha and another v. The State 1978 P Cr. L J 579 and Hamzo and another v. The State 1983 P Cr. L J 892 are relevant in a situation like this.
It is undoubted that police use third-degree methods for the purpose of securing a confession.
Again the confessions which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the accused at the trial, must always be open to suspicion.
No reliance can, therefore, be placed upon such confessions which were procured after keeping the appellants in wrongful confinement.
12. The recoveries of Rs,40,000 at the instance of appellant Amanullah Rs,1,10,400 at the instance of appellant Abdul Majeed, Rs,1,00,517 at the instance of appellant Booral Shah and rifle of Ghulam Nabi at the instance of appellant Gambo are sought to be proved through the evidence of Muhammad Nawaz Lund S.D.P.O. (P.W.16), and Ghulam Muhammad Lund (P.W.8), who has acted as Mashir. Ghulam Muhammad Lund (P.W.8) is admittedly a relative of Muhammad Nawaz Lund S.D.P.O. (P.W.16) who is said to have made these recoveries. He was all along associated during the investigation of this case. The above three appellants who were arrested much before the actual dates of arrest were in wrongful confinement during this period. That the witnesses of search should be respectable and of the locality are very valuable safeguards. The police have always their pet witnesses or some can be easily hired or influenced and, therefore, it is that 'respectable' and 'of the locality' have been considered as necessary qualifications of the search witnesses. The Court should always be vigilant to know as to why the witness has trudged all the way from his place to the place of search and why the police could not have a search witness from the locality.
There was, therefore, clear violation of section 103, Cr.P.C.
13. Likewise the recovery of rifle at the instance of appellant Gambo from a bush after about two years of the incident appears to be improbable.
14. For the foregoing reasons, I am of the view that the prosecution has failed to prove the case against appellants beyond reasonable doubt. Mr. K.M. Nadeem, learned counsel for State with his usual fairness has conceded to this position. In the result the convictions recorded against the appellants are set aside. The appeals are accordingly allowed. The appellants who are in custody shall be released forthwith, if not required in any other case.