KHIZAR HAYAT, J.---Special Court for Speedy Trials, Multan, tried Allah Ditta (appellant in Cr. A. No. 270 of 1988), and Mukhtar Ahmad alias Mokha and Mahi (appellants in Cr. A. No. 274 of 1988) under section 392/397, P.P.C., with Muhammad Abbas (appellant in CrA.No.271 of 1988) and one Arif under section 216-A, P.P.C., and vide judgment, dated 17-10-1988, acquitted Arif but convicted and sentenced Muhammad Abbas to 7 years' rigorous imprisonment and a fine of Rs.10,000 in default whereof to undergo further rigorous imprisonment for one year under section 216-A, P.P.C., while Allah Ditta, Mukhtar Ahmad alias Mokha and Mahi were sentenced to 10 years' rigorous imprisonment and a fine of Rs.20,000 each, in default whereof to undergo further rigorous imprisonment for 2 years under section 392/397, P.P.C. This order shall dispose of afore-mentioned three appeals filed by the convicts which have arisen from the same impugned judgment.
2. The prosecution story is as follows: In the year 1988, H.C. Muhammad Izhar (P.W.7) was posted as process-server in Police Department at Sahiwal. On 13-4-1988, at about 8-30 p.m., he was returning home on his motorcycle No.795/SLC. When he reached in the area of Chak No.81/5-L, about 2 miles away from his village, three persons of whom two were armed with fire-arms came in front of him and stopped him. One of them placing gun on his temple asked him to leave the motor-cycle.
Complainant resisted whereupon the other culprit who was armed with rifle gave him a blow with it on his ribs and threatened him with dire consequences. All the three culprits then snatched his motorcycle, a ring of silver, a wrist watch and a purse containing Rs.80 besides his driving licence and licence of revolver from him and having dragged him to a nearby wheat crop tied his hands down with a Patka (P.1) and then the armed culprits rode away on a mare while third culprit left on the motor-cycle.
3. After departure of the culprits Muhammad 1zhar complainant raised hue and cry. It attracted Muhammad Sharif (P.W.4) and one Muhammad Salim of his village, who untied him. He then went to Police Station Burjwala and lodged F.I.R. Exh.P.D. With A.S.I. Azadar Hussain (P.W.3), the same night, at 00-3 a.m., against the three unknown robbers saying that he can identify them if shown to him.
4. M.A. Latif, Police Inspector, (P.W.10), visited the spot, the same night. He called Nizam Din tracker (P.W.6) on the spot for tracing the footprints of the culprits. He lifted a mould of the footprint of one culprit from there and secured it under memo Exh.P.M. He arrested Muhammad Arif, accused on 4- 5-1988 and Mukhtar Ahmad alias Mokha, appellant, on 29-5-1988. He then transferred the investigation, to Muhammad Yaqoob (P.W.11) who arrested Allah Ditta, appellant on 10-6-1988 and seized his Chappel (P.7) worn by him, under memo Exh.P.K. On 14-6-1988 he arrested Muhammad Abbas, appellant from Sahiwal Jail. Mahi, appellant was also arrested but his date of arrest is not given.
5. In test identification parade held by Nayyer Iqbal, M.I.C. (P.W.1) on 4-6-1988 besides Muhammad Izhar complainant (P.W.7), Muhammad Ali (P.W.6) claimed to have seen the culprits on the night of occurrence when they happened to pass by him, and identified Mukhtar Ahmad alias Mokha, appellant to be one of the culprits.
6. On 14-6-1988, in another test identification parade held under the supervision of Ch. Muhammad Fazil, M.I.C. (P.W.2) Allah Ditta and Mahi, appellants, were identified by Muhammad 1zhar complainant (P.W.7) and Nazir Ahmad (P.W.9) whereas Abdul Ghafoor (P.W.8) identified Allah Ditta, appellant, to be the person whom he had seen on the night of occurrence in the area of Chak No.79/5-L, dragging a motorcycle towards the Dhari of Muhammad Abbas, appellant. The same Magistrate held identification parade of footprints of Allah Ditta as well, wherein Nizam Din tracker (P.W.6) rightly picked up his footprints.
7. On 8-6-1988, S.I. Muhammad Yaqoob (PW.11) recovered motorcycle (P.2) at the pointation of Mukhtar, appellant, from his house in Chak No.98/9-L, and secured it under memo Exh.P.F. On 15-6- 1988, Mahi, appellant, got recovered .12 bore gun (P.4) from jungle which was secured under memo Exh.P.H. On 17-6-1988 Allah Ditta, appellant, led to the recovery of wrist watch (P.5) and ring of silver (P.6) belonging to the complainant from his house in Chak No.65/5-L, which were seized vide memo Exh.P.J. All these recoveries were witnessed by Muhammad Sharif (P.W.4) and Abdul Majid P.W. (given up) besides S.I. Muhammad Yaqoob (P.W.11). Habib Ullah Inspector (P.W.12) recovered rifle 7 mm (P.3) from Mukhtar, appellant, on 9-6-1988 from bushes.
8. At the trial prosecution examined in all 12 witnesses. Complainant Muhammad Izhar (P.W.7), the only eye-witness of the occurrence, narrated the story as given in paragraphs 2 and 3 above. He admitted that the place where he was robbed is 2 miles away from his village, the culprits remained with him for a few minutes and that at the time of occurrence they did not have a mare with them. He denied that he was shown the appellants before test identification was held or that the recoveries shown to have been made from the appellants were fake. He admitted that Muhammad Sharif (P.W.4) who untied him resides in his village.
9. Muhammad Sharif (P.W.4) is a neighbour of complainant. He stated that on the night of occurrence, at about 7-30 p.m., he and Salim came out of village and heard alarm at a distance of 100/150 yards. They went towards that side and found Muhammad Izhar complainant in a wheat field with his hands tied down with a Patka and they released him. He supported the recovery of incriminating articles effected from Mukhtar Ahmad alias Mokha, Allah Ditta and Mahi (appellants).
He admitted that the night of occurrence was dark and that when he had untied the complainant, he was not in injured state. He also admitted that places of recovery were situate 4/5 miles away from his residence and nobody from those localities was joined to witness the recoveries.
10. Muhammad Ali (P.W.5) stated that he was sitting outside the Chak on roadside at about 8-45 p.m., on the night of occurrence when he saw Allah Ditta, appellant, whom he identified two months later in an identification parade, dragging away a motorcycle and Mukhtar Ahmad alias Mokha and Mahi, appellants, armed with gun and rifle, were riding a horse whom also he identified correctly in the test identification. He admitted that he is co-villager of the complainant. The night of occurrence was dark but he had seen the appellants in torch light.
11. Abdul Ghafoor (P.W.8) stated that he was watering his field in Chak No. 79/5-L when he saw a person taking away a motorcycle by dragging it. He suspected him and followed him upto the Dhari of Ghulam Abbas (appellant) where he joined Mukhtar Ahmad alias Mokha and Mahi who were already present there. He claimed to have identified these appellants (not known to him earlier) in an identification parade held .In jail premises. In cross-examination, he admitted that there was no light at the Dhari of Ghulam Abbas. Further, admitted that he was challaned in a theft case and his brother was challaned in a case under section 324, P.P.C. And that the former case, was pursued by uncle of Abbas appellant and in the latter case Abbas's brother was a prosecution witness. He also admitted that his uncle had litigation with the father of Abbas, appellant. He claimed to be owner of 2-1/2 acres of land and that his turn of water starts at 3-02 p.m., and ends at 4-30 p.m.
12. The appellants when examined under section 342, Cr.P.C., denied the allegations and did not produce any evidence in defence. Learned trial Court believing the prosecution evidence convicted and sentenced the appellants as indicated in para 1 of the judgment, hence these appeals.
13. We have heard learned counsel for the appellants as well as for the State and also perused the record.
14. Muhammad Abbas, appellant, has been convicted and sentenced under section 216-A, P.P.C.
The only evidence against him is the statement of Abdul Ghafoor (P.W.8). He merely stated that Allah Ditta, appellant, dragged a motorcycle to the Dhari of Abbas, appellant, who had told him that Allah Ditta was known to him. Admittedly it was dark night when the witness allegedly followed Allah Ditta, appellant, and saw him joining Mukhtar Ahmad alias Mokha and Mahi, appellants, at the Dhari of Muhammad Abbas, appellant. No source of light was available at that Dhari also. It was not, therefore, possible for the witness (P.W.8) to have identified the persons, whosoever were present at the Dhari of Muhammad Abbas, appellant, on the relevant night. Supposing that Allah Ditta, Mukhtar and Mahi, appellants were seen by Abdul Ghafoor (P.W.8) at the Dhari of Muhammad Abbas, appellant, yet there is no evidence on record suggesting that Muhammad Abbas knew that Allah Ditta, Mukhtar and Mahi came there after committing robbery. Leaving aside the fact that the witness belongs to the camp opposed to Muhammad Abbas, appellant, we find that his claim of having seen the appellants when they passed through the fields which were being irrigated by him on the night of occurrence, is false for the reason that robbery was allegedly committed at 8-30 p.m., while turn of water of the witness ended at 4-30 p.m., therefore, his meeting the robbers (whosoever they were) near his field under irrigation, was not probable. Above all it is essential for convicting an accused under section 216-A, P.P.C., to prove that he harboured the persons knowing or having reasons to believe that they would commit or had committed the offence of robbery. Since the evidence on record does not satisfy these essential ingredients, therefore, charge under section 216-A, P.P.C. Fails against him. His appeal (Criminal Appeal No. 271 of 1988) is, therefore, allowed, conviction and sentence awarded to him are set aside and he is acquitted. He shall be released forthwith if not required to be detained in any other case.
14-A.Now we take up case of Allah Ditta, Mukhtar Ahmad alias Mokha and Mahi, appellants. The prosecution banks on:
(a) Statement of Muhammad Izhar complainant (P.W.7);
(b) facial identification of appellants by Muhammad Izhar complainant (P.W.7) and Muhammad Ali (P.W.5) in test identification parade held under the supervision of Nayyar Iqbal, M.I.C. (P.W.1) and Muhammad Fazil, M.I.C. (P.W.2);
(c) identification of footprints of Allah Ditta, appellant, by Nizam Din tracker (P.W.6) in test identification parade held by Muhammad Fazil, M.I.C. (P.W.2); and
(d) incriminating recoveries effected from appellants deposed to by Muhammad Sharif (P.W.4) and S.I. Muhammad Yaqoob (P.W.11).
15. The appellants raised an objection before the Magistrates who supervised test identification parades that they were shown to the P.Ws. By the police before the identification parade was held.
Muhammad Izhar complainant (P.W.7) admitted that no source of light was available on the spot at the time of occurrence. He also admitted that the robbers/appellants stayed with him for a few minutes while snatching his belongings forcibly at gun-point. We are therefore of the view that in such a highly charged situation of fear and fright in the darkness of night the complainant would not have fully seen faces of the culprits and remembered their features, therefore, identification of appellants by him in test identification parades held 2 months after the occurrence cannot be safely relied upon. Similarly P.W.5 Muhammad Ali's claim that he correctly identified the appellants in the test identification because he had seen Allah Ditta, appellant, dragging a motorcycle and Mukhtar Ahmad alias Mokha and Mahi, appellants, while riding away on a horse, in flash of a torch when they happened to pass by him, outside his Chak, cannot be accepted. He admitted that appellants were not known to him previously, therefore, it is not believe-able that having caught their momentary glimpse he was able to identify them in the identification parade without having been shown to them their faces by the police before the identification parade was held.
16. Regarding identification of footprints of Allah Ditta, appellant, by Nizam Din (P.W.6), it may be stated that mould of foot-print of Allah Ditta, appellant, identified in test identification parade was not prepared and signed by the Magistrate for the sake of comparison by the trial Court with that mould of the footprint which was lifted from the spot by the Investigating Officer as required by rule 26 of Chapter XXV of Volume III of the Police Rules, 1934. It is not stated that the footprint found on the spot was of a bare-foot or it was a shod---footprint, therefore, recovery of Chappal (P.7) from Allah Ditta, appellant, is of no consequence. Furthermore, since the instructions laid down in aforementioned rule 26 have been violated, therefore, this piece of evidence which otherwise is weak type of evidence, cannot be acted upon.
17. Coming now to the recovery of .12 bore gun (P.4) from Mahi, appellant, and 7 mm. Rifle (P.3) from Mukhtar Ahmad alias Mokha, appellant, we hold that they are of no evidentiary value since they have not been connected with the commission of crime in any manner. As for recovery of motorcycle (P.2) made from Mukhtar Ahmad alias Mokha, appellant, it may be mentioned that these recoveries have been sought to be proved through Muhammad Sharif (P.W.4) who resides 4/5 miles away from the places of recoveries and is co-villager of the complainant. It is admitted by him that none of the residents of those places was made to witness the recovery as enjoined in section 103, Cr.P.C., which provision is mandatory in nature, therefore, these recoveries too cannot be used as evidence against the appellants.
18. H.C. Muhammad Izhar (P.W.7), complainant, and Muhammad Ali (P.W.6) contradict each other on material points, e.g., the complainant stated that he was waylaid and robbed by culprits appellants some two miles away from his village and Muhammad Ali (P.W.6) having reached there at his alarm released his hands, whereas Muhammad Ali (P.W.6) his neighbour stated that he heard alarm at a distance of 100/150 yards from his village and found Muhammad Izhar, complainant, in a wheat field with his hands tied down with a Patka whom they had released Muhammad Izhar, complainant, stated that he was given blows with the butt of the rifle on his ribs by one of the robbers but Muhammad Ali (P.W.6) stated that he found no injury on his person. For all the above-mentioned reasons we are of the view that the prosecution has failed to bring home the charge under section 392/397, P.P.C. Against these appellants beyond reasonable doubt, therefore, we accept appeal of Allah Ditta (Criminal Appeal No. 270 of 1988) and of Mukhtar Ahmad alias Mokha and Mahi (Criminal Appeal No.274 of 1988), and set aside their conviction and sentence and acquit them. All the appellants were released by means of our short order, dated 20- 6-1989.
N.H.Q./A-1107/L