MUHAMMAD AMIR MALIKJ.- Nadeem Iqbal (19 years)a second year student, Qurban Ali and Ijaz Anwar (21 years) both First year students, Jamshed Iqbal (22 years) a welder by profession and Arshad (21 years) a cultivate or appellants were charged for an offence under section 392/34 P.P.C.
Trial was held by Punjab Special Court for Speedy Trials No.2, Faisalabad. Vide judgment dated 17.1.88 Nadeem Iqbal, Quarban Ali, Jamshed Iqbal and Ijaz Anwar were convicted under section 392/34 P.P.C and each sentenced to 10 years R.I and a fine of Rs.50,000/- each or in default thereof 2h years R.L each Arshad was acquitted of the above said charge but convicted under section 411 P.P.C-and awarded a sentence of three years R.I and a fine of Rs.10,000/- or in default thereof 9 months R.I. The benefit of the provisions of section 382-B Cr.P.C was extended to them.
2. The convicts have filed three separate appeals which we propose to dispose of by a single judgment.
3. A Branch of Muslim Commercial Bank is working at Mandi Buchiana within the area of Chak No.6567-GB at a distance of 10 miles from police station Lundianwala in District Faisalabad. There was a robbery at the said Branch at 11.30 a.m. On 28.12.86. Sarfaraz Ahmad complainant, the Manager of the Bank (PW.4)made statement (Ex.PA) at the spot at 12.15. a.m. The same day to Ahmad Saleem SHO(PW.IO). On its basis formal FIR(Ex.PA/l) was registered at the police station it 1.5 P.M by Falak Sher Head Constable (PW.2)According to the FIR the complainant Manager alongwith his cashier Muhammad Ashraf(PW.5) and other staff were working in the Bank at the fateful time when four persons, two with rilles, one with a carbine and the 4th with a revolver entered and made the staff hands up^A box containing an amount of Rs.1,28. 697.66 was taken away by force. The culprits made good their escape in an almond colour Toyota car 1981 Model which was parked out- side in the street while firing in the arisein the meantime Muhammad Yousaf, Bashir Ahmad (given up PWs) and Ch. Noor Ahmad, Food Grain Inspector (PW.6) reached alongwith many others Muhammad Ashraf Cashier, Muhammad Yousaf, Bashir Ahmad and Ch. Noor Ahmad PWs told that the culprits were Ijaz Anwar, Nadeem Iqbal, Qurban Ali and Jamshed Iqbal who were on visiting terms with Arshad appellant, S resident of Mandi Buchiana.
3. Ijaz Anwar appellant in his statement under section 342 Cr.P.C pleaded that he was a student of Intermediate College, Ravi Road, Lahore and a member of Muslim Students Federation which is opposed by Jamiat. According to him, at the instance of Jamaial, he and his co-accused Nadeem Iqbal were involved by Hamid Mukhtar Gondal, DSP and Shahid Durani, Inspector SHO, Shahdra. This plea was adopted by Nadeem Iqbal. Jamshed Iqbal appellant in his statement at the close of the trial pleaded that he alongwith his co-accused Ijaz Anwar and Nadeem Iqbal were arrested from the bathek of Ijaz Anwar while enjoying V.C.R. He asserted that he being a friend of Ijaz Anwar and Nadeem Iqbal accused had been falsely involved. Quarban Ali appellant ascribed his involvement to the enmity of Rana Muhammad Anwar, Inspector Special Branch. According to him Rana Muhammad Naeem son of said Inspector was a vagabond, had borrowed Rs.90/- and on demand for return inflicted Churri blows to him and he (Quarban Ali) snatched the Churri and gave him three blows and cross cases were registered. Arshad appellant stated that he was falsely involved by his opponent Sadiq Dogar of his chak as Muhammad Ashraf PW belonged to the parly of said Dogar. The appellants also made statements on oath under section 340 C r.P.C. Mehr Muhammad Jehangir (D. W.l)was produced by Ijaz Anwar appellant and Rana Muhammad Siddique. Rana Abdul Haq and Sher Khan (D.W.2,3 and 4) were produced in defence by Quarban Ali appellant. It may be mentioned that this Sher Khan DW was cited as an eye witness but given up by the prosecution.
4. Contention has been raised hv the learned counsel for the appellants that the Special Court had no jurisdiction to try the case as the charge under section 392 P.P.C was not a scheduled offence as defined in clause (c) of section 2 of Special Courts for Speedy Trials Act (Act No.XV) 1987. The contention seems to be based not upon the correct appreciation of the legal provisions. The occurrence in the present case took place on 28.12.86 and the report under section 173 Cr.P.C was submitted in the Speedy Trial Court which took cognizance vide its first order dated 31.10.87. At this point of time Special Courts for Speedy Trials Ordinance (Ordinance No.1) 1987 was in the filed.
Article 1(3) of the Ordinance provided that it shall come into force on such date as the Provincial Government may by notification in the official gazette appoint. Such a notification was issued on 25.11.1987(No: -8-34/H-SPL111/87)." Offence ln clause (c) of Article 2 of the Ordinance is defined as "an offence punishable under any law for the time being in force....... " Section 15 of Act of 1987 relates to the repeal of the Ordinance and in subsection (2) clause (d) thereof it is clearly enacted that the repeal of the Ordinance "shall not affect any investigation, legal proceeding........... , and any such investigation, legal proceeding........ May be instituted, continued......... As if this Act had not been passed". The conclusion is irresistible that at the time the cognizance was taken by the Special Court 'any offence punishable under any law was triable t by it and after the repeal of the Ordinance the proceedings were to be continued i. e. Trial to be concluded under the provisions of the Ordinance, as if the Act (Act XV of 1987)hud not been passed. We therefore, reject the contention.
5. Af the trial the ocular account of the occurrence was given by Sarfaraz Ahmad, Muhammad Ashraf (PWs 4 and 5), the Manager and the cashier of the Bank and Ch. Noor Ahmad, Food Grain inspector (PW.6). The case was investigated by Ahmad Saleem, SHQ. Of Police Station Lundianwala and Asghar Ali Inspector SHO Police Station Sadar, Faisalabad(PWs 10 and 9).
6. Asghar Ali Inspector PW.9 stated that on 28.12.86 while posted at Police Station Sadar. Faisalabad he received wireless message from SSP directing him to hold Nakabandi at Jaranwala -Faisalabad Road as Robbery had been committed in a Bank at Buchiana. He deposed that Nakabandi was held on the road near the new building of police station Sadar Faisalabad and at about 3 p.m when cars were being checked coming from the side of Jaranwala, car FDK 3637 reached and stopped at a distance of 30/40 karams from the barrier, four persons alighted from it and ran towards the new building of P.S Sadar, Faisalabad. Two were armed with 7 MM rifles, one had a l2 bore, gun and when chased they started firing at the police. The firing was replied. All the four were apprehended. They were Nadeem Ahmad, Jamshed Iqbal, Ijaz Anwar and Quarban Ali appellants- The car parked on the road side was taken into possession vide memo (Ex.PL). A brief-case (P.10)was lying in it and it contained cash of Rs.l,26562/- and was secured vide memo (Ex.PK). From Nadeem Iqbal 7 MM rifle (P.8)alongwith 5 cartridges (P.17/1-5) were taken into possession vide memo (Ex.PJ.) Jamshed Iqbal was having twelve bore gun (I6) four cartridges(P.14/l- 4)as well as .32 bore revolver (P.12) and 17 bullets (P.13/l-17).These were secured vide memo (Ex.PF and PE) Ijaz Anwar was having a revolver (P.9) 15 bullets(P.15/l-15).a 7 MM rifle(P.7)and four bullets (P.16/l- 4).These were taken into possession vide memo (Ex.PH). Quarban Ali was carrying32 bore revolver (P.9) and 15 bullets (P.LI/1-15) and were recovered vide memo (Ex.PJ).The recoveries are proved by Haji Mehmood Ahmad and Asghar Ali Inspector (PWs 7 and 9).
7. Rana Ahmad Saleem (P.W.10) received the information about the commission of robbery at the bank and reached there. He recorded the statement of the Manager (Ex.PA), inspected the spot and examined the witnesses. He was still at the bank when information was received that the culprits had been arrested by P.S Sadar Faisalabad and he reached there. The four appellants were under arrest with Police Station Sadar and he formally arrested them in the present case. He also arrested Arshad appellant on 2.1.87 from his bouse and he got recovered cash box (PI) 'cash Paid' stamp(P.2) and stamp pad (P3) and were taken into possession vide memo(Ex.PC) .The recovery evidence in this regard is coming from the testimony of Muhammad Arshad cashier and Ahmad Saleem SHO (PWs.5 & 10).
8. We have heard the learned counsel for the appellants, the State, and gone through the record with their help. The occurrence of robbery at the bank, by four culprits, whose names were learnt before the FIR was lodged the statement of the complainant Manager was recorded by the SHO on reaching there, the occurrence had even been reported to the SSP who deputed Asghar Ali Inspector to hold the Nakabandi party in which the concerned car carrying the cash was recovered and the four appellants carrying fire arms apprehended, stand proved from the statement of the witnesses examined and referred to above.
Muhammad Ashraf Cashier and Noor Muhammad Food Grain Inspector had stated categorically that the four appellants were on visiting terms with Arshad appellant of the chak of the cashier and they If new them. There is nothing in the cross-examination of the eye witnesses to indicate that four appellants were named due to some malice or at the instance of somebody else. The four appellants were arrested on the very day of occurrence, their car with cash and weapons recovered. The statement of Sher Khan (D.W.4) further corroborates the above conclusion. He stated that at about 11/1130 a.m. He went to Central Jail, Faisalabad and on return therefrom at 2.00 P.M. At the barrier of Jaranwala- Faisalabad road in front of the newly constructed building of P.S. Sadar. Police were on duty, a car was stopped as were the other cars and four persons alighted from it and started running followed by the police. There was cross firing between them and the police. Ultimately the police apprehended the four persons who were brought to the barrier. He, however, stated that he could not identify them. We, therefore, see no ground to differ with the conclusion reached by the learned trial court as against Nadeem Iqbal, Jamshed Iqbal, Ijaz Anwar and Quarban Ali appellants.
8. So far as the case of Arshad appellant is concerned it stands on a different footing. From him only cash' box, the stamp and the stamp pad of bank have been recovered. The cash was recovered from the other four appellants while going in the car 0n the very day of occurrence.
Arshad is a resident of the very chak in the area of which the bank is situate, it was, therefore, not expected that after the robbery the other four appellants would have gone to him and delivered him the empty box, the stamp and the stamp pad. When cash had been taken away by the other appellants there was no sense in these articles being kept by Arshad appellant.
9. The result is that we extend the benefit of doubt to Arshad appellant, his appeal is accepted and his conviction and sentence set aside. The appeals of the other four appellants for the offence under Section 392/34 P.P.C, stand dismissed. However, the three appellants are students and all the four are very young. We are, therefore, inclined to lake lenient view in the matter of sentence and reduce it to 7 years R.1, each and a fine of Rs.10,000/- each or in default thereof one year's R.1, each.