On 4-5-1987 P.W.4 Khaista Rehman A.S.I. Of Police Station Mandani was on Gusht alongwith a police party and was present at Police Post Taro where at 12-45 hours complainant Bashir Ahmad P.W.1 made a report to him inter alia disclosing that he used to drive motor car No.SGB-8786 on hire at Rawalpinid Airport, that at 9-30 on the same day three persons, two of them with beard, engaged his car for Rs.400 for taking them to Peshawar, that when at 12-15 hours he reached village Taro, the said persons directed him to turn the car on a branch road, that when he reached near canal and a garden about 1-1 /2 kilometres from Taro, another bearded person was standing on the way upon which the passengers of the car asked him to stop, that simultaneously three other young persons, one of them with a beard and the other two who were shaved and two of them having rifles came and started beating the complainant and forcibly snatched the car from him and drove away. The aforesaid A.S.I. Recorded the complaint and sent Murasila to Police Station Urmar where F.I.R. No.56 was recorded on the same day.
2. It transpires that the police party gave a chase and arrested appellants Gulab Sher and Sher Bahadur on the same from the Khawar. Appellant Sher Bahadur was arrested from near an Afghan Refugees Camp. It also transpires that there was already a case under section 307, P.P.C. Against him and he had been apprehended by the Afghan refugees and was handed over to the police.
Appellants Ibrahim alias Shahid Iqbal and Gul Sanam were also arrested from their houses on the same day. There were two other accused Ehsanullah and Sh. Marwat. The former was arrested on 13-1-1988, while accused Sh. Marwat is an absconder. Appellant Ibrahim alias Shahid Iqbal and Gul Sanam made confessions on 9-5-1987 and appellants Gulab Sher and Sher Bahadur made confessions on 11-5-1987. Identification parade was held on 14-5-1987 wherein complainant Bashir Ahmad identified appellants Ibrahim alias Shahid Iqbal and Gul Sanam.
3. After investigation all the aforesaid 4 appellants and accused Ehsanullah were sent up for trial before the Additional Sessions Judge, Nowshera where they were charged under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with sections 147., 395/149 and 412/149, P.P.C. All the 5 accused pleaded not guilty and claimed trial. The State produced 9 witnesses in proof of the prosecution case.
4. P.W.1 complainant Bashir Ahmad confirmed the contents of the report made by him. He stated that the accused had booked his taxi for Peshawar but they instead took him to the side of a canal and there they informed him that they did not want to go to Peshawar and asked him to stop the taxi. He further stated that he saw one other person having a beard who also sat in the taxi and then the accused asked him to start the taxi and after covering some distance when they reached an orchard having wheat crop as well, there the accused asked him to stop the vehicle and one of the accused started grappling with him and snatched the key of the taxi. He further stated that in the meantime three other persons, who were hidden in the wheat crop, rushed towards the taxi, two of them were with topaks and the third one was having a pistol. He further stated that all the accused gave him beating and then snatched the taxi from him. He further stated that after the arrest of some of the accused he was called by the police and he identified two of them in an identification parade. He further stated that the taxi was also recovered and was handed over to him. P.W.4 Khaista Rehman A.S.I. Had recorded the report of the complainant. He also gave a chase to the accused. When the police party reached in a Khawar they saw the tyre marks of the car and followed the same and saw the stolen car at some distance. The police party continued the chase and the accused stopped the` car and escaped. The police party continued the chase and apprehended accused Gulab Sher and Sher Bahadur. In cross-examination this witness admitted that he did not find any person present in the car when it was taken into possession. He further stated that accused had already left the vehicle. He admitted that both of the accused were arrested within the vicinity of an Afghan Mohajar Camp. P.W.5 Muhammad Ayaz Khan Circle Inspector stated that he had arrested accused Gulab Sher, Ibrahim, Sher Bahadur and Gul Sanam.
He further stated that accused Gulab Sher and Sher Bahadur were arrested by the police party after a chase and accused Ibrahim and Gul Sanam were arrested from their houses. He had also produced all the aforesaid accused for recording their confessions. He also produced accused Ibrahim and Gul Sanam for their identification parade before Tehsildar Noshwera and they were identified by the complainant. P.W.7 Abdur Rauf Khan Magistrate 1st Class had recorded the confessional statements of all the accused. He stated that he had complied with all the legal formalities in recording the confessional statements. P.W.8 Wali Muhammad H.C. Was a member of the police party which had chased the accused. He stated that they were chasing the car, three accused decamped from the spot and one was apprehended alongwith the car. P.W.9 Muhammad Maqsood Tehsildar had held identification parade on 14-5-1987 in which the complainant correctly identified Gul Sanam and Ibrahim alias Shahid Iqbal.
5. In their statements under section 342, Cr.P.C. All the appellants and acquitted accused Ehsanullah denied the commission of the offence. Appellant Ibrahim further stated that the complainant had not uttered any single word about his involvement in the offence and he did not know about the recovery of the stolen car. Same plea was taken by appellants Gul Sanam, Sher Bahadur and Gulab Sher.
6. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Ehsanullah and convicted all the other 4 appellants under section 147, P.P.C. And sentenced each of them to undergo rigorous imprisonment for 2 years, and to pay a fine of Rs.3,000 or in default to suffer rigorous imprisonment for 6 months. The learned Additional Sessions Judge also convicted all the 4 appellants under section 395/149, P.P.C. And sentenced each of them to undergo rigorous imprisonment for 10 years, and to pay a fine of Rs.15,000 or in default to further undergo rigorous 'imprisonment for 2 years. Cr.A. No.24/P of 1990 (in hand) has been filed by Gulab Sher and J.Cr.A.No.8/P of 1991 was filed by appellant Sher Bahadur and J.Cr.A.No.13/P of 1991 was filed by Gul Sanam and Ibrahim alias Shahid Iqbal. Since all the three appeals challenge the same judgment, dated 12-6-1990 of the learned Additional Sessions Judge, judgment in Cr.A.No.24/P of 1990 in hand will also dispose of the aforesaid two jail criminal appeals.
7. From the evidence which was recorded during the trial, it had not come on the record that the complainant had also accompanied the police party which had chased the culprits. No accused was mentioned by name in the F.I.R. And actually the complainant did not know any one of them.
He had only disclosed their features. It is not known as to on what ground the police party, chasing the car, alleged to have been snatched by the appellants, could connect appellants Gulab Sher and Sher Bahadur with the commission of the offence after apprehending them. It is also to be noted that appellant Sher Bahadur was already involved in a case under section 307, P.P C. And Afghan refugees had already apprehended him. Strong presumption would arise that Afghan refugees had apprehended appellant Sher Bahadur in connection with the firing case under section 307, P.P.C. And they handed over him to the police party and he was also charged by the police for snatching the car, while at that time no offence was alleged to have been committed by appellant Sher Bahadur. The other two appellants Ibrahim alias Shahid Iqbal and Gul Sanam were arrested from their village. Even at that time the complainant had not accompanied the police officer who had arrested these two appellants and there was nothing oil the record to connect them with the commission of the offence. Actually there was no material on the record to connect all the four appellants with the commission of the offence when each of them was arrested.
8. It is alleged that in the identification parade which was held on 14-5-1987 the complainant had identified two accused but appearing as P.W.1 he did not name any of them. There is no evidence on record to show as which of the appellants had engaged the taxi of the complainant and which of them had boarded it in the way.
9. The Tehsildar, who had supervised the identification parade had stated that the complainant had identified Gul Sanam and Shahid Iqbal. But it shall be seen that both these appellants were not asked any question about the identification parade when their statements under section 342, Cr.P.C. Were being recorded. Although the complainant identified these two appellants but he did not ascribe any definite or particular role to each of them. The omission to ask the question about identification parade has caused a great prejudice to appellants Ibrahim alias Shahid Iqbal and Gul Sanam. This was not a mere irregularity but an illegality which had vitiated the trial. Normally in such a circumstance the case could have been remanded but since there are other factors which have caused serious doubts in the prosecution case, it would not be in the interest of the appellants to remand the case and to make them stand the rigours of trial after a lapse of more than 5 years of their arrest.
10. It is also interesting to note that all the appellants had made confessional statements but question with regard to it was only asked from appellant Gul Sanam while the other three appellants were not asked any question about their confessional statements. This omission is also very fatal to the prosecution case. Actually this omission has caused great prejudice to the appellants and has also vitiated the trial. They were not asked to explain whether they had made any confession or not but it was used against them for their conviction. It is also interesting to note that the lone appellant Gul Sanam, who was asked question about his confessional statement, had retracted therefrom and had said that he was kept in prolonged police custody where he was tortured severely and threatened by the investigating officer and when produced in Court he had made a protest and had not made any confession.
11. The learned trial Judge committed many illegalities of grave nature during the trial which had not only prejudice the appellants but had also vitiated the trial as r have already observed. I do not deem it fit to remand the case for trial de novo because I have come to the conclusion that there was otherwise no sufficient evidence on the record to connect the appellants with the commission of the offence.
12. Since complainant was not accompanying the police party when the appellants were apprehended after chase and were arrested from their village. There is no evidence available to connect each of them with the commission of the offence. Even in the identification parade the complainant could only involve two of the appellants but he did not say as what offence they had committed against him. He failed to identify the others. Also except one none of the other appellants was confronted with the confessional statement alleged to have been made by each and the one who was asked about his confession he stated that he was kept in prolonged police custody and was tortured and threatened of dire consequences.
13. In the aforesaid circumstances the State had failed to bring home the guilt of the accused. I will, therefore, accept all the three appeals. All the appellants are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.
The aforesaid are the reasons for my short order, dated 11-2-1992.
N.H.Q./699/FSC