KHALIL-UR-REHMAN KHAN, J: Muhammad Aslam son of Rehmat Ullah aged 30 years and Muhammad Latif son of Akbar A.I aged 26 years, were tried under section 394/34, P.P.C. By Punjab Special Court for Speedy Trial No. X, Faisalabad and vide judgment dated 16-11-1987 both of them were convicted under section 394/397/34 P.P.C. And were sentenced to imprisonment, for life. They were not extended the benefits of section 382-B, Cr.P.C. Both the convicts have challenged their conviction and sentence by filing this appeal.
2. The prosecution story as per statement Ex. PB of Haji Noor Muhammad PW 3 complainant recorded by Muhammad Baqir S.I. PW.7 at Police Post Ghulam Muhammad Abad, Faisalabad at 8 p.m. On 2-12-1986 is that on the same day at 7 p.m. He alongwith his son Muhammad Nasir P.W.
Was going from his factory to his house on a scooter and when they reached near Chhattriwala Chauk in Jamil Town two persons (of the description detailed therein) armed with pistols accosted them all of a sudden, by coming in front of them, the accused who was well built fired on them but it did not hit them. They, however, stopped. Both the accused then shouted that they should part with their belongings. The accused who was comparatively thinner than the other taking out a dagger, caught hold of the complainant, the other accused caught hold of the complainant's son Muhammad Nasir who felled down the said accused. The complainant further alleged that he was given a dagger blow on the front side but it did not injure him as there was a diary m his Salooka which he was wearing under the Chaddar and shirt at that time. He added that this accused snatched from him a handkerchief in which there were Rs. 22,017 in cash (220 currency notes of the denomination of rupees one hundred each) twelve meter Irish cloth and bills pertaining to Riaz Sizing Factory. According to the complainant his name had been embroidered on the handkerchief. It was further alleged that the accused who was grounded by Muhammad Nasir, PW, while lying on the ground took out a dagger and inflicted blows on the legs and left arm of Muhammad Nasir who on receiving the injuries released the said accused and thereafter both the accused made good their escape. The complainant raised noise and both the accused fired one shot each and decamped with the handkerchief containing Rs. 22,017, twelve meter Irish suiting cloth and bills of Riaz Sizing Factory. The complainant further added that Muhammad Nasir was escorted to the hospital in injured condition. 1t was claimed that the complainant and his son can identify the accused who had robbed them.
3. Muhammad Baqir S.I. P.W, sent the statement Ex. PB to Police Station Gulberg, Faisalabad, where formal F.I.R. Ex. PB/1 was recorded by Mehr Khan S.H.O PW 2 at 8.30 p.m. Thereafter Muhammad Baqir S.I. Alongwith complainant Haji Noor Muhammad accompanied by police contingent left for the place of occurrence. At about 3 a.m. On 3-12-1986 Muhammad Baqir S.I. Alongwith police party was present in front of Riaz Sizing Factory when he was informed by the police informer that some suspects were present at the Power---Loom Factory of Muhammad Jat. He alongwith the police contingent, Haji Noor Muhammad PW 3, Muhammad Nasir P.W.4 and Ghulam Mohyuddin (cited but later on his name was scored out) reached the factory of Mahmood Jat and found Muhammad Aslam appellant sitting in the store on a chair counting the currency notes: Haji Noor Muhammad P.W.3 and Muhammad Nasir P.W.4 identified Muhammad Aslam as well as the currency notes.
Muhammad Aslam appellant was apprehended and pistol P.2, dagger P.1 and live cartridge P.3 as well as 110 currency notes of the denomination of rupees one hundred each were taken into possession vide memo. Ex. P.C. Which was attested by Haji, Noor Muhammad P.W.3 and Muhammad Nasir P.W.4. Muhammad Aslam appellant was handed over to the custody of head- constable and a constable. Muhammad Boota P.W. Joined the police party, and Haji Noor Muhammad and Muhammad Nasir P.W. At this stage. On the information provided by the Mukhbar that the other accused was concealing himself in the house of his brother-in-law named Muhammad Saleem the police party left for the said house of Muhammad Saleem situated in Sarfraz Colony. The Mukhbar pointed out the house of Muhammad Saleem. The door was knocked by Muhammad Baqir S.I. P.W.7, and Abdur Rahim S.I. P.W.8 on which Muhammad Latif appellant went on the roof of the said house. Muhammad Baqir S.I. Scaled over the wall and went on the roof in order to apprehend the said accused. On reaching the roof the Sub---Inspector challenged him to surrender but the said accused fired at him hitting him on the abdomen and thigh. Muhammad Baqir S.I. Fell down. The said accused thereafter ran out of the house and the police party pursued him and after some chase overpowered the said accused at a distance of one furlong and recovered from his possession a .12 bore carbine Pl and .12 bore live cartridge P.2 and a dagger P.3 apart from an amount of Rs. 11,017 consisting of 110 notes of the denomination of rupees hundred and 17 notes of the denomination of rupee one. These were secured vide memo. Ex. P.C. Exhibited in the connected case F.I.R. No. 789 of 1986. Abdur Rahim S.I. Drafted a complaint Ex. P.D. In the connected case and the same was sent to the Police Station Gulberg, Faisalabad for registration of the case.
4. It is pertinent to note that on the statement Ex. PB of Haji Noor Muhammad P.W.3 case F.I.R. No. 787 dated 2-12-1986 under section 17 of Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) was registered at Police Station Gulberg against two unnamed accused whereas on the report of Abdur Rahim S.I. Made at 4.55 a.m. On 3-12-1986 case F.I.R No. 789 dated 3-12-1986 was registered under sections 307, 357 and 4332, P.P.C, and case F.I.R. No. 788 under section 13 of Arms Ordinance, 1965 was also registered against Muhammad Latif appellant on -3-12-1986 at Police Station Gulberg, Faisalabad. After the registration of the first case the investigation was taken into hand by Saleh Muhammad Inspector P.W. He immediately left for the spot and after reaching there inspected the spot and prepared the site plan Ex. P.D. From there Saleh Muhammad Inspector proceeded to D.H.Q. Hospital Faisalabad where Muhammad Nasir injured P.W. Was admitted. He recorded his statement. On 3-12-1986 while he was present at the spot he received the files of case F.I.R. Nos. 788 of 1986 and 789 of 1986. He reached the spot and found Muhammad Latif and Muhammad Aslam accused present in custody wit'fi Abdur Rahim S.I. P.W. Alongwith other P.Ws. He recorded the statements of the P.Ws. And then proceeded to the place of arrest of Muhammad Aslam accused, inspected the spot where recovery was effected from Muhammad Aslam accused and prepared rough site plan Ex. P.E. Saleh Muhammad Inspector again proceeded to the place of arrest of Muhammad Latif accused, inspected the place where Muhammad Baqir S.I. Was injured and prepared the rough site plan Ex. F. He formally arrested Muhammad Latif and Muhammad Aslam accused and got both of them medically examined as he found certain injuries on their persons. On 10-12-1986 he recorded the statement of Muhammad Baqir S.I. Under section 161, Cr.P.C. After consulting the doctor about the condition of Muhammad Baqir S.I. Who was then reported to be fit to make a statement. The investigation was thus completed by him and both the accused were challaned. Muhammad Nasir P.W. Was examined by Dr. Muhammad Anwar P.W.1 and as per medico-legal certificate Ex. P.A. Five incised wounds and one lacerated wound were found on the person of Muhammad Nasir, P.W. All the injuries were caused by sharp---edged weapon except injury No. 4 which was caused by blunt weapon. All these injuries were simple in nature. Muhammad Nasir P.W. Was brought by Dr. Dilshad at 7.30 p.m. On 2-12-1986 and he was admitted in the hospital and was discharged on the next day i.e. 3-12-1986.
5. The prosecution at the trial besides the evidence of Dr. Muhammad Anwar P.W.1 relied on the testimony of Haji Noor Muhammad P.W.3, Muhammad Nasir P.W.4, Muhammad Boota P.W.5.
Muhammad Baqir S.I. P.W.7, Abdur Rahim S.I. PW.8 and Muhammad Saleh Inspector P.W.9. Haji Noor Muhammad P.W.3 and Muhammad Nasir PWA supported the prosecution version as given in the F.I.Rs. Of both the connected cases with the addition that the shot fired by Muhammad Aslam while decamping with the money hit Muhammad Nasir on his foot and when they raised hue and cry the accused again fired while running away. The modification introduced at the trial was that the handkerchief containing the amount and irish cloth was snatched by the accused who had caused injuries to Muhammad Nasir, P.W. It will be noted that according to the F.I.R. The accused who had tried to injure Haji Noor Muhammad had snatched the handkerchief containing the currency notes, irish cloth and the bills pertaining to Riaz Sizing Factory. We have the statements of Muhammad Baqir S.I and Abdur Rahim S.I. Who deposed how on receipt of the information from the Mukhbar at abut 3 a.m. In the morning they reached the factory of Mahmood Jat and found Muhammad Aslam accused sitting in one of the rooms of the factory and counting the notes. The prosecution witnesses have described this room differently. According to Baqir it was a store-room, according to Abdur Rahim P.W. It was a khata of the factory and the other P.Ws. Described it as a room of the factory. The prosecution witnesses not only deposed about the identification of the two accused made by Haji Noor Muhammad and Muhammad Nasir P.Ws. But also of the recovery of the pistols, daggers and the currency notes. This evidence of the prosecution bas been believed by the Special Court for Speedy Trials and has convicted both the accused. The version of Muhammad Aslam appellant before the trial Court was that he was a previous convict in a dacoity case of Police Station Goira, District Toba Tek Singh in which he was sentenced to suffer rigorous imprisonment for three years and after serving the same he came out of the jail on 2-11-1986. He added that about five days prior to the occurrence he was arrested by Abdur Rahim S.I. And he was being interrogated and after 7 days of his arrest he was produced in Court for the first time for procuring his remand and then he came to know that he was involved in the present case. He added that he did not know Haji Noor Muhammad and his son Muhammad Nasir and it is only they who know as to why they were deposing against him or the police might be knowing. He stated that the police is always after him and that the witnesses were deposing at the behest of the police against him. According to him the recoveries were lake. Muhammad Latif accused in his statement under section 342, Cr.P.C. Denied the recoveries and added that three days prior to 3-12-1986 the police arrested him and kept him in illegal detention and tortured him. He added that earlier the police used to arrest him whenever it liked and that 3/4 years prior to this occurrence the C.I.A. Staff Police Faisalabad arrested him on the asking of his real uncle Niamat A.I. He was tortured and in retaliation he abused him and the police chopped off his penis and involved him in a false case of attempted suicide. Haji Noor Muhammad P.W. Got the power-looms of Niamat A.I on lease and that is why Haji Noor Muhammad and his son Muhammad Nasir had deposed against him. He did not know as to why he was involved in the present case. Both the appellants declined to make statements on oath but despite the refusal made the learned trial Court recorded the statements on oath of both the appellants. The learned trial Court obviously acted illegally in recording the statements of the appellants under section 340, Cr.P.C. However, nothing could be achieved by the prosecution from the statements so recorded.
6. We have heard the learned counsel for the appellants as well as the State. While examining the medico-legal certificate Ex. P.A. It was noticed that the date of examination noted therein is 12-2- 1987 while the dates of admission and discharge recorded therein respectively are 2-12-1986 and 3-12-1986. Learned State counsel took the position that the date 2-12-1986 appears to have been wrongly noted as 12-2-1987 and that in order to verify the actual position the original medico-legal certificate registers be summoned. He moved an application under sections 428 and 540, Cr.P.C.
For the re-examination of Dr. Muhammad Anwar P.W. As well. After hearing the parties this application was allowed. The original medico-legal certificate registers for the months of December, 1986 and February 1987 were summoned and the same were produced by Ghulam Muhammad Farooqi Dispenser D.H.Q. Hospital Faisalabad. Dr. Muhammad Anwar' was also re- examined. The bed-head ticket of Muhammad Nasir was also produced and the same was exhibited as Ex. P.W.1/A. Dr. Muhammad Anwar P.W.1 in his re-examination stated that the bed-head ticket Ex. P.W.1/A was prepared by, him and on the basis thereof he issued the medico-legal certificate Ex. P.A. He admitted that this certificate was neither prepared nor issued on 2-12-1986.
Muhammad Nasir was brought to the Casualty Ward by Dr. Dilshad who was not known to him but he entered his name as on 12-2-1987. Dr. Dilshad had told him that he had brought Muhammad Nasir injured to the hospital. The medico-legal certificate Ex. P.A was also issued to Doctor Dilshad as he appended his signature on the register acknowledging receipt of a copy Ex. PA. He admitted the suggestion as correct that 2-12-1986 the date of admission entered in Ex. P.W.1/A is in different ink and in different handwriting from the other entries. He added that he cannot say about the time Muhammad Nasir was discharged from the hospital on 3-12-1986 as he was discharged by the staff on duty on 3-12-1986 in the ward. He admitted that inadvertently he wrote the date of examination as 12-2-1987. In cross-examination he stated that on 3-12-1986 at 6 a.m. The temperature of Muhammad Nasir Nasir 98 whereas the pulse was 80. This temperature might have been noted sometime between 6 p.m. And 10 p.m. Oar 2-12-1986. He added that the patient is discharged usually by the doctor in morning hours when the ward doctor resumes the duty at 8 a.m. But if the patient leaves the hospital of his own earlier, the said fact is noted in the bed-head ticket of that patient. He admitted that such thing had been noted in the bed-head ticket of Muhammad Nasir. The examination of the bed-head ticket Ex. P.W.1/A shows that it is a fabricated document and as such it cannot be relied upon. In the pulse-temperature chart at two places the date recorded reads 2-12-1987 whereas at the third place the date recorded reads 3-12-1987. Out of the aforesaid two dates at one place figure `87' has been changed to read `86' while the dates noted as 2-12-1987 and 3-12-1987 have been left unchanged. Dr. Muhammad Anwar further admitted that the medico-legal certificate Ex. P.A. Was issued to Dr. Dilshad though there was nothing in the record of the patient to indicate that Dr. Dilshad was related to the inured or had brought the injured to the hospital and that he relied on the verbal statement made to him on 12- 2-1987 and issued him the certificate though he did not even know him. Personally. It is also not known as to how this certificate Ex. P.A. So received by Dr. Dilshad came in the hands of the police and was later on produced in evidence during trial. Learned counsel for the appellants in view of various unusual features of the case submitted that the appellants have previous criminal history and in a bid to eliminate criminals the police has involved them in these three cases falsely. He added that these days it is usual with the police to eliminate the criminals either through fake police encounters or by involving them in false case. He added that both the appellants were already in police custody and both of them were tortured with the result that the condition of Muhammad Latif became precarious and the police of Ghulam Mohammad Abad Police Post involved them in these two cases as otherwise the police was unable to apprehend the culprits who had waylaid and robbed Haji Noor Muhammad. The remarks of the learned counsel as to elimination of criminals in fake or genuine police encounters cannot be accepted at its face value, in the absence of solid proof. Such a generalization like surmises and conjectures cannot take place of substantive evidence which alone satisfies the judicial conscience for returning verdict of guilty. Moreover, police by eliminating criminal in genuine or fake encounters cannot win public esteem as by doing so, the police fails to perform its bounden legal duty which is to bring the culprits to book and to put them on trial for determination of their guilty by the Courts established by law. The law does not permit the police to exterminate criminals by itself adjudging them guilty or liable to be eliminated through police encounter. Their failure to apprehend the. So-called criminals always reflects adversely against their efficiency and their ability to maintain law and order.
7. We have gone through the evidence on record minutely. Various unusual features have attracted our attention and in the light of these features it has to be seen whether the depositions of the prosecution witnesses can be believed and acted upon. Muhammad Nasir P.W.4 as per the medical evidence produced by the prosecution itself was admitted in the hospital on 3-12-1986. Dr. Muhammad Anwar PW.1 admitted that if the patient leaves the hospital without being discharged by the doctor the leaving of the hospital in such a manner is ordinarily noted in the bed-head ticket. In the bed-head ticket Ex. PW 1/A no such entry stands recorded. Dr. Muhammad Anwar PW. 1 further stated that the patients are discharged on resuming duty after-8 a.m. In the presence of this evidence the claim of Muhammad Nasir PW that he left the hospital and reached the Sizing Factory of his father at about 12 night cannot be accepted at its face value. His presence at the time of arrest of Muhammad Aslam and at the other incident in which Muhammad Baqir S.I.
Allegedly got injured and at the time of apprehension of Muhammad Latif appellant, therefore, becomes doubtful. Even the main version of Haji Noor Muhammad and Muhammad Nasir P.Ws.
About the robbery is improbable. These two witnesses want us to believe that the two appellants used both the weapons, pistol as well as dagger at their leisure. They stated that the appellants came in front of the scooter suddenly and fired on them but the fire did not hit any one. Despite the fact that Muhammad Aslam was firing with his pistol Muhammad Nasir PW was able to overpower him and in fact felled him down and while so lying on the ground he took out the dagger and caused him injuries as if he had put the pistol in his pocket. After releasing himself he again fired his pistol causing him an injury on the foot. The injury on the foot was not noted by the doctor as the injury having been caused by fire-arm. It is hard to believe that when Muhammad Aslam had a pistol with him and had B fired at the son and the father, still Muhammad Nasir PW was able to overpower him. The version of Haji Noor Muhammad that Latif had also inflicted a dagger blow on his person but the injury could not be caused as it hit the diary which was at that time in the pocket of the Salooka worn by him is also not believable. Neither the Chaddar nor the Salooka nor the diary were taken into possession by the police. It will be noticed that every material fact which could have supported the version of these witnesses was withheld by the prosecution with the explanation that the same was not taken into possession during investigation. The connected case under sections 307 and 332, P.P.C. Was tried first and m that case the amount of Rs,11,017 alleged to have been recovered from the possession of Muhammad Latif appellant was produced by Haji Noor Muhammad in Court for its examination. These currency notes were seen by the Court and returned to the witness. This was again unusual that the case property secured through recovery memo was found in possession of the prosecution witness and he produced the same in Court during his examination. The alleged recovery from the accused as such cannot furnish proof of his involvement in the robbery.
7-A. Another feature of the case is that Ghulam Mohyuddin the only independent person joined by the police at the time of raid though cited as a witness was not produced in evidence as his name was later on scored out. None from the factory of Mahmood Jat or from Sarfraz Colony was made to join the raiding party. Muhammad Boota though had joined the police party at Riaz Sizing Factory from where the police contingent left for the power-loom factory of Mahmood Jat yet he admittedly did not witness the raid which culminated in the apprehension of Muhammad Aslam appellant. His factory is statedly located adjacent to the factory of Mahmood Jat and he kept on standing at some distance and from there he then joined the police party when it left for Sarfraz Colony. The testimony of Muhammad Boota as far as this case is concerned is of no corroborative value. Another unusual feature of the case is that neither Muhammad Baqir S.I. Nor Abdur Rahim S.I.
Were detailed to investigate the case. Muhammad Baqir as per his own admission was not in the investigating staff at that time. He at the trial volunteered that keeping in view the seriousness and sensitivity of the offence, he being incharge of Ghulam Muhammad Abad Police Post was directed to effect the arrest of the accused. He, however, admitted that he had not recorded this instruction in the column of proceedings of police. Even the fact that he had taken Haji Noor Muhammad PW to the spot finds no mention in proceedings of police as in the F.I.R. Ex. PB it was stated that he had taken his son Muhammad Nasir to the hospital. The statement of Haji Noor Muhammad was sent to the police station and after registration of the case Saleh Muhammad Inspector took charge of the investigation. He proceeded to the spot and from there he went to the hospital where he recorded the statement of Muhammad Nasir. He as per his admission remained at the spot where the robbery had taken place throughout the night. Muhammad Baqir assertedly got the information from Mukhbar about the presence of the suspects of the case in the factory of Mahmood Jat. This information admittedly was neither conveyed by Muhammad Baqir S.I. Nor by the said mukhbar to Saleh Muhammad Inspector. Muhammad Baqir S.I. Even did not join Saleh Muhammad Inspector in the raiding party or in any of the two incidents pertaining to the arrest of the two accused from the two places. Muhammad Saleh Inspector received the second report on the basis of which the other case under section 307/332 P.P.C. Was registered and during the investigation he just followed the foot-steps of the two aforesaid Sub-Inspectors. The investigation conducted by him was sketchy.
He did not prepare the site plan of the place of arrest of Muhammad Latif accused and of the recoveries made from him. He did not record the statement of any person living or working around the said place. In the site plan Ex. PG in the connected case FIR No. 789/86 admittedly no recovery of blood was made. He however admitted that there was no blood on the roof of the house of Muhammad Salim. He did not take into possession the clothes of Muhammad Baqir S.I. PW. He denied the suggestion as incorrect that the blood-stained clothes were not taken into possession to withhold the fact that the clothes were civilian. He however, admitted that when he reached the place of the second incident, he found Muhammad Aslam and Muhammad Latif appellants there though according to Muhammad Baqir, Muhammad Aslam after his arrest was placed in the custody of one head constable and a constable and was not taken to the house of Muhammad Salim in Sarfraz Colony. Saleh Muhammad Inspector denied the suggestion as incorrect that the accused were handed over to him a few minutes before 3 p.m. On 3-12-1986 by Abdur Rahim S.I. He denied the suggestion that Muhammad Latif accused was in serious condition due to police torture and the police got his medical certificate out of influence in order to save the officials of Police Post Ghulam Muhammad Abad. It would, therefore, be seen that the story of Haji Noor Muhammad and Muhammad Nasir P.Ws. As to the manner in which the robbery was committed is improbable. The material facts which could have supported their version were withheld. The presence of Muhammad Nasir PW at both the places where Muhammad Aslam and Muhammad Latif appellants were apprehended is doubtful. These two witnesses have also contradicted Muhammad p Baqir and Abdur Rahim police witnesses. According to these witnesses the information that Muhammad Latif was hiding in the house of his brother-in-law was provided by the police mukhbar whereas according to the two Sub-Inspectors this information was provided by Muhammad Aslam after his arrest and pursuant to the information so received they went to the house which was pointed out to them by the Mukhbar. The plea that recovery of Rs. 22,017 is not fake as such a huge amount cannot be provided either by the police itself or by Haji Noor Muhammad has no merit as the amount allegedly recovered from the accused was produced by Haji Noor Muhammad before the Court at the time of his evidence. The case of the prosecution has been knocked down completely from another document which we have noticed from the record. In the lower Court's record there is a carbon copy of the application moved by Saleh Muhammad Inspector on 4-12-1986 seeking remand of both the appellants on the ground that the accused were arrested on 3-12-1986 and the time of police custody was due to expire but they be remanded to police custody as a sum of Rs. 22,017 was yet to be recovered at their instance.
Accepting this plea the learned Magistrate granted remand till 10-12-1986 of both the accused. It is strange that we have oil record two recovery memos whereby a sum of Rs. 11,017 and Rs. 11,000 was recovered from Muhammad Latif and Muhammad Aslam accused respectively, on 3-12-1986. It is, therefore, abundantly clear that the recovery memos dated 3--12-1986 are fake and bogus. The record further shows that there were eight criminal cases registered against Muhammad Aslam whereas Muhammad Latif was involved in three criminal case. In these circumstances the version of the accused that the police urged to arrest them as and when they liked and that they nave been falsely involved in the present case does not appear to be without substance. We are of the considered view that the prosecution has not been able to prove the guilt of the appellants beyond reasonable shadow of doubt. We, therefore, accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge against them. They are in jail. They be released forthwith if not required in any other case.
8. Before parting with this judgment, we feel constrained to take serious notice of the conduct of Dr. Muhammad Anwar PW (the then Medical Officer) Ghulam Muhammad Farooqi, Dispenser, District Head Quarter Hospital, Faisalabad, Saleh Muhammad PW Inspector, CIA Staff, Muhammad Baqir S.I.
And Abdur Rahim S.I. Police Post Ghulam Muhammad Abad, Faisalabad. The medical record produced by the record-keeper/dispenser was found to have been interpolated and fabricated.
Whoever has fabricated the record of the hospital, deserves to be proceeded against: The investigation of both the cases was dishonest as well as deficient in material aspects as the basic features of the case were purposely ignored. The conduct of Saleh Muhammad Inspector, Muhammad Baqir S.I., Abdur Rahim S.I. And the role played by each of them requires to be investigated. A copy of this judgment as well as the judgment of the connected case will be forwarded to the Secretary, Health Department, Government of Punjab and Inspector-General of Police, Punjab, for initiating enquiry against the officers named above and proper legal action including action under the criminal law will then be taken against the persons/officers found involved in the commission of any offence, illegality or irregularity, under intimation to this Court.