SARDAR MUHAMMAD DOGAR, J.-- Five unknown persons came on a white car to the Ittowal Branch of United Bank Limited on 21.4.1988 at 10.30 AM. They were armed with Kalashnikovs After entering the Bank, four of them caught Maula Bakhsh, Guard of (he Bank, and snatched from him double barrel gun. On resistance of the gunman, they fired at him whereafter they took away a sum of Rs.18,353/- lying on the Counter and ran away riding the car. Fazal-ur-Rahman, Manager of the Bank, came out of the Bank to note the number of the car but he was threatened. However, he observed that the car was without number-plate. He sent information to the banks situated in the vicinity to inform the police. Muhammad Safdar Inspector/SHO (PW.14) P.S. Kharian arrived at the spot and recorded statement Ex.PB of Fazal-ur-Rahman (PW.9) at 11.30 AM. Formal FIR Ex.PB/1 was recorded on the same day at P.S. Kharian by Ghalib Hussain ASI (PW.2) at 12 noon on receipt of statement Ex.PB.
2. During investigation, Muhammad Safdar arrested Naeem Akhtar alias Nanna and Aslam on 19.7.1988. In fact, they were in custody of SHO PS Saraj Alamgir who had arrested them in case FIRs 174/88 and 176/88. He sent them to District Jail, Gujrat on 20.7.1988, where they were put to identification parade, on 28.7.1988, supervised by Abdul Razzaq Malik MIC (PW.1). Only Fazal-ur- Rahman PW was produced for identification of the accused. He correctly identified both of them i.e. Naeem Akhtar alias Nanna and Aslam. After identification parade, the SHO obtained the custody of the accused. While being in custody of police, Naeem led to the recovery of gun PI from the Dera of Muhammad Akram in village Gunja. The same was taken into possession vide memo Ex.PC. He also got recovered a sum of Rs.4000/- from the official quarter of his father in Mandi Baha-ud-Din on 11.8.1988. The same was taken into possession vide memo Ex.PD.
3. Muhammad Azeem Akhtar alias Phanna was arrested on 26.8.1988. He got recovered a sum of Rs.950/- on 28.8.1988 from his house in Mandi Baha- ud-Din. The same was taken into possession vide memo Ex.PE. No recovery was effected from Muhammad Aslam accused. All three of them were challaned after completion of necessary investigation.
4. The case was entrusted for trial to the Judge, Punjab Special Courts for Speedy Trials No.IX at Gujranwala. The learned trial Judge after recording statement of 14 PWs and the statements of the accused u/s 342 Cr.P.C, as well as u/s 340(2) Cr.P.C, convicted all of them under sections 397/395 PPC vide judgment dated 8.3.1989 and sentenced each of them to undergo R1 for ten years plus to pay a fine of Rs.20,000/- each in default whereof to undergo R1 for two years each. Whole of the fine, on recovery, was directed to be paid as compensation to Maula Bakhsh injured PW.
5. The convicts have filed appeal.
6. The prosecution in all had examined 14 PWs.
Abdul Razzaq Malik MIC, who had Supervised - the Identification Parade held in Gujrat Jail on 28.7.1988, appeared as PW1, and stated that Fazal-ur- Rahman (PW.9) had correctly identified Naeem Akhtar alias Nanna and Muhammad Aslam accused. He stated that on being asked both of them had stated that they had been shown to the witness during custody with the police.
7. Nazar Muhammad Head Constable (PW.3) claimed to have witnessed the recovery of gun PI at the instance of Naeem Akhtar alias Nanna on 31.7.1988 from the Dera of one Muhammad Akram resident of village Gunja. He also claimed to have witnessed the recovery of Rs.4,000/- at his pointing out on 11.8.1988. During cross-examination, he admitted that the accused belonged to village Khokhra and was not residing in Gunja. According to him, neither Akram nor any body else was present at the Dera at the time of recovery. He stated that the Dera was lying open and the gun was recovered from a room which was not even bolted. He stated that the amount recovered from Naeem was lying open in the house of his father. According to him, none of the residence or inmates of the house were present at the time of recovery.
8. Fazal Haq Constable (PWA) claimed to have witnessed the recovery of Rs.950/- at the instance of Azeem Akhtar alias Phanna on 28.8.1988 in Mandi- Baha-ud-Din. During cross-examination, he stated that the house was lying open and no family member was present there. He stated that they had not come to the police station in Mandi Baha-ud-Din even before or after the recovery.
9. Muhammad Idrees (PW-5) an official of the Bank produced licence (P4) of the gun (PI).
10. Zafar Iqbal (PW.6) and Muhammad Yusuf (PW.7) claimed to have seen all the three appellants alongwith Ilyas and Munazam travelling in a car on the day of occurrence at Dhoop Sari Bridge of the canal. Both of them denied that they were inimical to the appellants and had made false statements.
11. Dr. Ijaz Ahmed Waraich who had medically examined Maula Bakhsh (PW.9) appeared as PW.8.
He had noted four fire-arm injuries and one lacerated wound caused by a blunt weapon.
12. Fazal-ur-Rahman who had lodged the report appeared as PW.9. He claimed to have participated in the parade and stated that he had identified "the culprits who committed robbery in my bank." During cross-examination, he denied the suggestion that he had been shown the accused/appellants before the identification parade. However, he admitted that he had come to know 8/10 days prior to the identification parade that the accused had been arrested by Sarai- Alamgir Police and had been handed-over to Kharian Police. He also stated that he had come to know that the accused were kept in police station Cantt Kharian before identification parade.
13. Maula Bakhsh who had suffered injuries during the occurrence appeared as PW.1. He identified the appellants in the court to have committed the dacoity. He named Naeem alias Nanna to have fired at him and of having snatched the gun from him. He expressed inability to give the description of the customers who had visited the bank on the day of occurrence and denied the suggestion that he had made a false tutered statement.
14. Muhammad Safdar Inspector/SHO who had arrested the appellants and taken into possession articles recovered on pointing out of Naeem Akhtar and Azeem-Akhtar appeared as PW.14 and gave the details already mentioned in the earlier part of the judgement. During cross-examination, he stated that the house from where the gun was recovered was lying open. He denied the suggestion that he had shown the accused/appellants to the witnesses before the identification parade.
15. The appellants during their statements under section 342 Cr.P.C, denied the prosecution case as a whole and pleaded innocence. Naeem Akhtar alias Nanna stated stated as follows in answer to the question, "Why this case against you and why the PWs have deposed against you":- "Due to enmity with one Hanif Shah and the local police. Zafar Iqbal, Muhammad Yusuf and Khan Molak PWs are the partymen of said Hanif Shah and inimical towards me. My maternal grand- father Hakim Ali was murdered by the Dinga police. A case u/s 302/34 PPC was registered against Abdul Hamid Bajwa SI/SHO P.S. Dinga and other police officials on 25.8.1986 under FIR No.221 at Police Station Dinga. Due to this grievance I am falsely implicated in this case."
Same statement was made by Azeem Akhtar alias Phanna in answer to the similar question.
Muhammad Aslam took up the stance that he had been involved due to suspicion. All three of them made statements on oath also and declared themselves to be innocent.
16. Learned counsel for the appellants after taking us through the evidence criticised the impugned judgment and contended that the evidence of identification parade was not worth reliance, and so was the position of the evidence of recoveries of the amounts as well as the gun Learned counsel contended that the prosecution evidence was not only insufficient but also is not confidence inspiring even to maintain the conviction.
17. Learned counsel for the State defended the judgment of the trial court.
18. Before proceeding further, we would like to mention here that Muhammad Azeem Akhtar alias Phanna is no more alive. He is stated to have been murdered.
19. Naeem and Muhammad Aslam before being put to identification parade had remained in the custody of Sarai Alamgir Police as well as in the custody of Kharian police. Fazal-ur-Rahman (PW.9) who claimed to have identified both the accused in the identification parade stated that they had remained in the custody of the Police for 8/10 days prior to the identification. The witness while making statement at the trial did not state that he had identified Muhammad Aslam and Naeem.
He only stated that he had identified the culprits who had -- committed dacoity in his bank. The Magistrate who had supervised the identification parade clearly recorded in the report that he had told the witness to identify two accused from the gathering. It means that he made it clear to the witness that there were two persons in the gathering to whom he had to pick up. He admitted that he did not know the rules set for holding identification parade. Both the appellants had raised objection before being identified that they had been shown while in custody of the police to the witness. In fact, it appears from the record that the appellants and the witness belonged to same area and their villages were situated within a distance 10 to 20 miles from each other.
Maula Bakhsh Gunman who had suffered injuries and who had come in close contact with the accused was not joined in the identification parade. No explanation/reason has been given in that regard. In the circumstances the evidence of identification parade does not inspire confidence.
20. The gun was recovered from the Dera of one Akram resident of village Gunja. Naeem did not reside there. No connection of Naeem with Akram has been shown. It is the prosecution's own case that the Dera was lying open and the gun was also lying there in open. No person from the village was joined to witness the recovery. In the circumstances the evidence of recovery of gun also is not worth placing reliance upon,
21. The evidence of recovery of Rs.4,000/- at the instance of Naeem from the house of his father and Rs.950/- at the instance of Azeem Akhtar from the house of his father also does not inspire confidence. The police officer not only' did not join any person from the vicinity of the house but also did not join any person from the town from where the recovery was effected. In spite of having gone to the area of another police, he neither informed nor made a report even at the police station which was situated in the same city. The statements of the witnesses that the house was open and no inmate of the house was present and the amounts were also lying open are absolutely unworthy of credence, as such, no reliance can be placed on the evidence of recovery of the money.
22. Having considered all aspects of the case, we are convinced that the prosecution has failed to prove the case against the appellants beyond any reasonable shadows of doubt. They are acquitted. They shall be released forthwith if not required in any other case. The conviction of Azeem is also set aside.
23. As the accused did not claim the money alleged to have been recovered from them, the same shall be impounded in favour of the State. Gun PI was licensed gun of the bank. The same shall be handed over to the bank.