ABDUR REHMAN KHAN KAIF, J.-- Khyber, Bahrobar, Bahramand and Sanobar sons of Talizar, residents of Khawazakhela, Muhammad Hasan son of Ghulam Hasan resident of Lai Bahadar Banda and Ghulam Muhammad son of Toti resident of Ghamsir in Swat District were tried by the learned Sessions Judge, Sadu Sharif (Swat) in a case registered vide F.I.R. No. 160, dated 14-7--1987 of P.S., Khawazakhela, Swat, under section 17(2) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 hereinafter referred to as the said Ordinance).
Vide his judgment dated 7-1-1.989, the learned trial Judge found all the accused guilty of the charge and were convicted thereunder. Each of the accused was sentenced to three years' R.I. With whipping thirty stripes.
2. Feeling aggrieved the mentioned convicts have preferred the present appeal against their conviction and sentences wherein they have challenged the impugned judgment on the grounds stated therein.
3. The facts of the case briefly stated in the F.I.R. By Muhammad Iqbal complainant, a goldsmith, resident of Khawazakhela, are that his goldsmith shop was situated near Chinar Baba street. He used to close his shop at 6-00 p.m. And open it at 7-00 a.m. He was in the habit of taking all the gold ornaments of his shop to his house after closing his shop in the evening and would bring the same back at morning time when the shop was to be opened.
On the day of occurrence, gold ornaments of different descriptions as stated in the F.I.R. Belonging to different persons, weighing about 30 Tolas wrapped in a white handkerchief were brought by the complainant from his house to his shop. When he reached his shop, sat on the ground in order to open the lock, keeping the gold ornaments on the ground, he was attacked from the back side and when he got up he saw Bahrobar alias Bahro resident of Nal within the jurisdiction of Police Station Matta, armed with a pistol alongwith an unknown person and after taking the gold ornaments were trying to run away.-The other person who was taking away the ornaments was attacked by the complainant and he tried to catch hold of him, but he pushed him aside. The complainant raised alarm, which attracted Fazal Karim, Amir Rehman and Muhammad Saeed P.Ws. The accused fired in the air. They were chased till Gammon Bridge where Bahrobar, accused, boarded a Suzuki van No. 5568/SWT and the other accused made good his escape by disappearing in the fields.
4. The report of the complainant was recorded by Mir Said Khan, Inspector (P.W.12) who was the S.H.O. Of Police Station Khawazakhela on 14-7-1987. He proceeded to - the spot alongwith the complainant and prepared the site plan (Exh.P.B.). He took into possession two empties of .32 bore pistol vide recovery memo. (Exh.P.R./2). He also prepared the injury sheet of Muhammad Iqbal, complainant, and referred him for his medical examination. On the following day; he arrested Bahramand alias Kaki, accused, from an orchard and as a result of his interrogation, some ornaments were recovered at his instance, which were taken into possession vide recovery memo.
(Exh.P.R.). It has been stated by this witness that while Bahramand, accused, was m police custody he disclosed the names of the other accused and they were also arrested. He also got recorded the confessional statements of Bahramand and Ghulam Muhammad, accused, and after the usual investigation, a complete challan was submitted for trial against the accused.
5. At the trial the prosecution examined as many as 16 witnesses in support of its version.
Fazal Wahab, Naib-Tehsildar (P.W.1) conducted the identification parade of the accused, Ghulam Muhammad, who was identified by Muhammad Iqbal, complainant. Shah Hussain son of Mir Aslam (P.W.2) is a witness of the recovery memo. (Exh.P.R.) vide which some ornaments were recovered at the instance of Bahramand alias Kaki, accused. Shahwazir Khan, F.C. (P.W.3) is the recovery witness of a .32 bore country made pistol (Exh.P.I) alongwith a bandolier (Exh.P.2) while Karim, D .F. C. (P.W.4) was entrusted with search warrants under section 204, Cr.P.C., issued against Bahrobar and Khyber, accused. A.I Rehman, A.S.I. (P.W.5) had applied for the issuance of warrants under section 204, Cr.P.C. While Muhammad Jan, I.H.C. (P.W.6) remained associated with the investigation and arrested Khyber, accused from judicial lock--up at Saidu Sharif. Ahmad Saeed Khan, S.I. (P.W.7) partly investigated the case while Shafiq Muhammad A.S.I. (P.W.8) was present during the proceedings of the identification parade and partly investigated the case. Muhammad lqbal son of Saraf Jan (P.W.9) is the complainant m this case. In his statement, he has reiterated almost a similar version as stated in the F.I.R. In his cross-examination contrary to the statement of the Investigating Officer, he first went to the hospital for treatment and thereafter proceeded to the police station to lodge the report. He has admitted in his cross-examination that no identification parade of the gold ornaments recovered was made in this case. Amir Rehman son of Faqir (P.W.10) who is related to the complainant and is an eye-witness to the occurrence has supported the verison of the complainant as stated in the F.I.R. Haq Nawaz Khan, Inspector, (P.W.11) has submitted supplementary challan against Bahrobar and Khyber, accused. As already mentioned Amir Said Khan Inspector (P.W.12) had investigated the case while Syed Abdul Kalam, Inspector (P.W.13) arrested Bahrobar and Khyber, accused in this case and partly investigated the case. Munir Ahmad Khan, Magistrate 1st Class, Swat (P.W.14) recorded the confessional statements of Bahramand alias Kaki and Muhammad Hasan, accused while Hazrat A.I son of Mian Nazir Jan (P.W.15) is the driver of Suzuki van No. 5566/ST. According to him, he had given lift to Behrobar near Gammon Bridge. Dr. Zainul-Ahmad (P.W.16) has proved the medico-legal report (Exh.P.M.)) and (Exh.P.M./1).
6. When examined under section 342, Cr.P.C. All the accused denied the allegations and stated that they were falsely involved in the case. The accused, however, declined to make their statements on oath as required under section 340(2), Cr.P.C. And have further failed to produce any evidence in their defence.
7. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance. '
8. In the instant case the complainant charged two persons in the F.I.R. One of them was named as Bahrobar while neither the name nor the description of the other person was mentioned in the F.I.R.
In his statement Amir Rehman (P.W.10) mentioned a third accused as well, but in his cross- examination he has deposed that in his statement under section 161, Cr.P.C. He never mentioned the third accused at the time of occurrence. As admitted by the complainant, this witness Amir Rehman son of Faqir (P.W.10) is closely related to the complainant which fact was falsely denied by Amir Rehman P.W. In his statement. Subsequently, as stated by Amir Said Khan, Inspector, (P.W.12) the other accused were also charged during the investigation and interrogation of some of the accused.
9. According to the complainant and the other eye-witness, Amir Rehman (P.W.10), Bahrobar had taken away the ornaments, but strangely enough the recovery was allegedly made from Bahramand alias Kaki, accused, of some of the ornaments. In his cross-examination, Amir Said Khan, Inspector, (P.W.12) has stated that the recovery was made in darkness from a field. He was unable to disclose the name of the owner of that field. Similarly, he had prepared no site plan of the place from which the recovery of the mentioned ornaments was allegedly made. It is also an admitted fact that the recovered ornaments were neither produced in Court nor they were properly identified in a regular manner by the complainant as the same were allegedly handed over to the complainant by the Investigating Officer. All these facts when taken into consideration, made the matter highly doubtful as it has nowhere been proved through legal evidence that part of the ornaments allegedly recovered in fact belonged to the complainant and was part of the stolen property. No doubt, the confessional statement of Bahramand alias Kaki, accused, was recorded, but the same was retracted. A retracted confession cannot be made the basis of conviction unless it is corroborated and supported by independent evidence which in the instant case is not forthcoming. The very confessional statements recorded in this case are not reliable and are not fulfilling the requirements of the law on the subject. Amir Said Khan, Inspector (P.W.12) has stated that he did not remember whether the accused were handed over to him after their confessional statements were recorded or not. Munir Ahmad Khan, M.I.C. 1st Class (P.W.14) who recorded the confessional statements has clearly admitted that he handed over the accused to the Naib-Court after their confessional statement indicating that they were handed over to the police as no order were passed for sending them to the judicial lock-up.
10. The identification parade in this case was held in respect of only one of the accused, namely, Ghulam Muhammad, out of the lot, but that was also conducted in clear violation of the relevant rules and instructions. 1t has been admitted by Fazal Wahab (P.W.1) in his cross-examination that the identification parade was held in the police station. He further admitted that he did not mention the name of the dummies and that the dummies were already present there in the police station.
He further admitted that the complainant was also present in the premises of the police station. He has also stated that he did not satisfy himself regarding the identity of the complainant. It was also stated by him, that the complainant had pointed out to him that the accused to be identified was Ghulam Muhammad. Such identification parade has, therefore, no evidentiary value and is to be discarded. The weapon of offence mentioned in the report was allegedly recovered, but not from the person mentioned in the F.I.R Such recovery even if it is of the same pistol will be of no help to the prosecution.
11. On going through the entire material available on the record, we are of the view that the case against the accused is replete with grave suspicions and doubts and the benefit of such doubt shall have to be extended to them.
12. In the result we allow this appeal, set aside the conviction and sentences of Khyber, Bahrobar, Bahramand, Sanobar sons of Talizar, Muhammad Hasan son of Ghulam Hasan and Ghulam Muhammad son of Toti, appellants, and acquit them of the charge. Bahrobax son of Talizar, appellant, is in jail. He shall be released forthwith if not required in any other case. The other appellants are on bail. Their bail bonds shall stand discharged.
N.H.Q./473/FSC