Accused Daniel Boyd, Muslim name Saifullah and Charles Boyd, Muslim name Asadullah abovementioned, claiming as of American origin, faced their trial before this Court to answer the charges framed against them under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and section 506 read with section 34, Pakistan Penal Code and also under section 411, P.P.C.
2. The episode of the prosecution case briefly stated is that on the eventful day on 20-6-1991 seven staff members of Hayat Abad Branch of United Bank Limited (hereinafter referred to as the Bank) had started their casual business hardly an hour earlier when at about 9 a.m. Daniel Boyd accused entered the Bank and approached Zahid Nawaz, the Manager and custodian of the assets of the Bank who was, at that time, busy checking the transactions of the earlier day at the ledger counter, and showing him a cheque of U.S. $50 drawn on Emirate Bank, asked him to encash it. The victim Zahid Nawaz showed his inability and advised the accused to go to the Emirate Bank, Peshawar Cantt. The accused then asked him to give him the exchange in Pakistan currency which he also declined saying that there existed no such arrangement with ,the Bank. Meanwhile, it is alleged, Charles Boyd, the other accused entered the Bank with a pistol in his hand and shouted "do not move, hands up". Accused Daniel Boyd too then took out a pistol and, after lining up of the staff at gun point, accused Charles Boyd threatened the victim to hand over the cash. According to the prosecution, when the victim and witnesses did not heed to his threats, accused Charles Boyd himself went forward and took away all the cash lying in the Cash-box which was placed near the cashier's seat on the floor and put it in the back pocket of the jacket accused Daniel Boyd was wearing. It is stated that availing the opportunity Shamsher Khan, the gunman of the Bank jumped to the strong room-cum-stationery room where--upon Charles Boyd fired a shot with his pistol, in return whereof Shamsher also fired a shot from his D.B. Shotgun which proved ineffective but struck a window, breaking its glass panes. Thereafter the two accused, while retrieving, fired a few shots, in exchange whereof Shamsher also fired another ineffective shot and both the accused decamped from the spot by driving away motor--cycle which they had parked outside the Bank.
3. After the accused left the Bank, the victim and witnesses checked the account and cash and found that the accused have robbed the Bank of Rs.82,477. Within 45 minutes of the occurrence, S.H.O. Khan Raziq of Police Station Hayat Abad, arrived there and the victim Zahid Nawaz lodged the report with him. After recording the `murasila', Exh.PA/1, the S.H.O. Sent it to the Police Station for registration of a case. Thereafter the S.H.O. Inspected the spot, prepared the site-plan; Exh. P.B., correctly with all its notes. During spot inspection, he recovered and took into possession broken pieces of window panes, Exh.P.2, a spent bullet, Exh.P.3, two empties cartridges of .30 bore, Exh.P4, five empties of .25 bore, Exh.P5 and two empties of .12 bore,' Exh.P6, produced by Shamsher Khan (all of which were smelling of fresh discharge) vide memos. Exh.PD, Exh.PE, Exh.PF, Exh.PG and Exh.PH respectively.
4. Later, as the prosecution proceeds, on 7-7-1991, at about 9 p.m. Khan Raziq S.H.O. (P.W.) while on patrol duty arrested both the accused from Khyber Park of Hayat Abad Town and brought them to the Police Station. The victim Zahid Nawaz incidentally visited the police station in order to know the progress of the case when he saw and identified them to be the persons who had committed the robbery in the Bank. During interrogation, Daniel Boyd accused led the police to his house on the same night of his arrest at about 11 p.m. And from an Almirah of the house the Investigation Officer recovered at his instance one pistol, three live cartridges, a charger and an amount of Rs.30,000 and took them into possession vide memo. Exh.PJ. The Investigation Officer prepared the site-plan of the house, Exh.P.L. The pistol recovered at the instance of accused Daniel Boyd along with the two empties recovered from the spot were sent to the Arms Expert for his examination whose report is to the effect that the two crime empties were fired with the pistol in question. Khan RaziQ S.H.O.
(P.W.) after completing the investigation submitted his report under section 173 of the Code of Criminal Procedure against the accused with a prayer to hold their trial.
5. Both the accused were formally charged under sections 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 506. Pakistan Penal Code read with section 34, P.P.C.
Accused Daniel Boyd was also charged under section 411, Pakistan Penal Code. They pleaded not guilty to the charges and claimed trial.
6. In order to prove its case, the prosecution examined the victim Zahid Nawaz and eight witnesses including two eye-witnesses. Mr. Farukh Sair Khan, Magistrate 1st Class, Peshawar (P.W.1) recorded the confessional statement of accused Daniel Boyd which, according to him, after following all the legal formalities in this behalf, when he was convinced that the accused was making a voluntary confession, he recorded the same and is marked as Exh.PK. He also gave the certificate, Exh.PK/1, as per requirement of section 364, Criminal Procedure Code. In cross-examination, he explained that he did ask the accused as to how long he remained in police custody but did not mention it while recording the confession. He, however, repelled the suggestion that the accused apprised him of the torture he was subjected to at the hands of the police. He also affirmed that he did introduce himself as a Magistrate before recording the confession but did not expressly note it for reason that it was already mentioned in the certificate, Exh.PK/1. He admitted that on the following day of the arrest of the accused he had passed the order of remand and acceded to the request of the police to give custody of the accused for three days and at that time neither the accused desired to make confession nor the police requested him to record one. He, however, refuted the suggestion that the accused did not make any confession and he just recorded what the accused had stated before the police and that he forced the accused to sign each page of his confessional statement.
7. The next material witness for the prosecution is Abu Hamza. a Palestinian by origin. He is the person whose motor-cycle was borrowed from him on the day of occurrence by the two accused and was allegedly used in the commission of the offence. According to the witness he knew both the accused by their Muslim names and on the day of occurrence, at about 7 a.m., he handed over the motor-cycle, Exh.P.l, to the accused who returned it to him the same day at about 4/5 p.m. It was after about two weeks that he produced the vehicle to the investigation Officer in the police station which was taken into possession vide memo. Exh.P.C. In cross-examination he affirmed that he knew the accused SOMA since about one year. Hoe admitted that he had no document pertaining to the motor-cycle except the receipt of its purchase.
8. Next were recorded the statements of the victim Zahid Nawaz and the two eye-witnesses namely, Mubarik Ali third Officer and Arbab Shoib Ahmad, the Cashier of the Bank.
9. So far as narration of events is concerned, all the three witnesses are at one with each other to what has been stated earlier while giving out the facts of the case. During their examination-in- chief, however, there has been raised an objection by the learned counsel for the accused on the request made by the learned Public Prosecutor to permit the witness to point out the culprits whose physiognomy was given in the Court. I have, however, acceded to the request of the. Learned Public Prosecutor, overruling the objection. They correctly pointed out the person congruous to the description that has been given in the F.I.R. As well in this Court statements of Daniel Boyd Muslim name Saifullah and Charles Boyd Muslim name Asadullah as the two accused responsible for the occurrence. The main reason that weighed with me to allow the witnesses to do so was the need to get a clear picture as to which of the two accused entered first and who followed him in entering the Bank. In cross-examination, however, there has been noted, a -number of omissions in the statements of the victim as well as the two eye-witnesses from their statements recorded under S.161, Cr.P.C. Or, for that matter, from the F.I.R. Which, at times, have been explained by the victim and the witnesses that they did not state so for the reason of having not been asked by the Investigation Officer specifically. Two pleas of defence, however, have been introduced in their cross-examination specifically; one; pertaining to the fact that on the very day of occurrence, as per press report, in Daily Mashriq, Daily The Frontier Post and Daily News, a proclaimed offender who, while riding over a motor-cycle with his co-accused was killed the same day in an encounter with police: had allegedly robbed the Bank of Rs.96,000 but according to the defence, the victim and the eye--witnesses, out of fear, suppressed it and two; relating to the dispute of Daniel Boyd and his wife with one Hamid Waheed, a member of the staff of the Bank, over the payment of a cheque of U.S. $5,000 and it is alleged that to hush up the matter, the victim and the two eye- witnesses conspired to level a false charge on the two accused. These suggestions in cross- examination of all the three persons have been vehemently denied.
10. Said lamal Khan A.S.I. (P.W.7) accompanied the Investigation Officer when accused Daniel Boyd, in custody, led the police party to his house for effecting recovery of weapon of offence as also part of robbed money.
11. The last material witness for the prosecution is Raziq Khan S.H.O. (P.W.8) who, while supporting, the prosecution version right from his arrival at the place of occurrence, narrated the events of his investigation till its completion and consequently putting the challan in Court against both the accused. He, however, explained his failure to hold the identification parade of the accused for the reason that on the very first day of their arrest, the victim who, according to the S.H.O. Had by chance come to the police station identified them as such. He also stated that after examining the accused when he wanted to record their statements under section 161, Cr.P.C. The accused wrote down their respective statements over a "zimni-paper" themselves which now form part of the police file. During investigation, he recovered pistol, Exh.P.7, three live bullets, Exh.P.9, with one charger, Exh.P.8, and Rs.30,000 from the house of the accused at the instance of Daniel Boyd who while in custody led him there. He also produced both the accused before the Magistrate for getting their confessional statements recorded there. In his cross-examination the I.O. Denied the suggestion that he applied any torture on, or prompted the accused for a promise, to make confession during their police custody which, according to him, was simply obtained with a view to effect more recoveries, though the accused were prepared to make confession on the very first day. He repelled the suggestion that the empties sent to the Expert were not the one recovered from the spot but the one later fired from the pistol after its recovery. He also denied to have been recommended for reward in connection with this-case. He showed ignorance of any press report appearing in the local papers about the instant occurrence.
12. The learned Public Prosecutor thereafter closed his case and abandoned the rest of the witnesses as unnecessary, though, he tendered them for examination by Court or by defence if so desired. Learned counsel for the accused declined to examine them, nor the Court felt the necessity of examining them.
13. Both the accused were examined under section 342, Cr.P.C. Both of them denied the allegations of the prosecution so far as the occurrence is concerned. They, however, admitted to have acquaintance with Abu Hamza (P.W.) from whom they were borrowing his motor-cycle quite often but did not recollect if they had borrowed it on the day of occurrence also. As regards their arrest they admitted the day and time when they were arrested but stated that they were arrested from an Afghan General Store near Red Mosque, which is located in Sector J-1 Hayat Abad. About Zahid Nawaz's visit to the police station, they showed their ignorance. Daniel Boyd also admitted to have led the police the same day of his arrest late in the night and recovery of Rs.30,000 from him but denied the recovery of pistol with its charger and three live rounds. Consequently he did not show any knowledge about the positive result of the Arms Expert. About his confession, Daniel Boyd denied that after the Magistrate had told him that if he made a confession it would be used against him. He, however, stated that there was nothing with him to confess but the Magistrate wrote down the statement as given by the police and he was forced to sign each paper of the confession. .As to why the victim and the eye-- witnesses charged them, both the accused claimed innocence and false charge. Accused Daniel Boyd added that he has been falsely charged on account of an unhappy incident taken place between him and his wife on one side and one Hamid Waheed on the other side. In this connection he made the following statement: "A few weeks before the alleged incident my wife took a cheque of US dollar 5,000 to U.B.L. Hayat Abad Branch. She gave the said cheque to one Hamid Waheed, employee of the said Branch, asking him to open her account. Hamid Waheed took the cheque and asked her to have the Pakistani currency in black market and that he will arrange for her. She said that she will discuss it with me. When she asked him for the return of the cheque, he told her that he had no cheque with him. On this every one in the bank started searching the cheque and one of them also came out to search the vehicle. She started crying whereupon Hamid Waheed said that she should not be worried and he will open the account in her name. The said gentleman drew out some money from his pocket in order to pay her. At this she left the bank for her house and narrated the whole episode to me. I asked my wife to go and tell Hamid in this regard. I also accompanied her to the bank the same day. We met Hamid Waheed on the road outside the bank. He opened the door next to the driver seat and sat there. He put his hand on the thigh of my wife. I was sitting in the rear seat of the said vehicle but was not visible to Hamid Waheed as a curtain was hanging in between him and me. When I saw him doing such indecent act, I told him that I am her husband. He withdrew from his pocket Rs.7,000 and handed over the same to me. Hamid Waheed also gave her a chit scribing over it his residential telephone number and name which I produce now in Court as Exh.DD. I also produce a copy of Daily Mashriq dated 21-6-1991 pertaining to the story of the present occurrence besides a copy of Daily The Frontier Post dated 21-6-1991 (pages 3 to 6 only) and The Daily News, Rawalpindi. I also produce two electricity bills for the months of April and May, 1991 and the telephone bill for the month of February, 1991, paid by me in U.B.L. Hayat Abad which are in the name of my landlord Ghulam Rabbani."
14. Both the accused, however, offered themselves to be examined on oath under section 340(2), Criminal Procedure Code and also named the persons whom they wished to call as defence witnesses.
15. At this stage I would like to state that the learned counsel for the accused wanted this Court to summon some witnesses named in an application as Court-witnesses and in alternative as defence witnesses. After hearing the learned counsel for the accused and the Public Prosecutor, I declined to examine the said persons as Court witnesses in that they were required to confirm the publication of the news item and since the learned counsel himself conceded that such evidence has no evidentiary value, I was of the considered opinion that evidence of such witnesses is not essential to a just decision of the case and accordingly to summon them as Court-witnesses is, not likely to advance the cause of justice in any manner. For the same reasons, I declined also to summon these persons as defence witnesses because I considered that the application is made for the purpose of causing delay in the proceedings and with intent to defeating the ends of justice.
16. The two accused appeared in their defence as witnesses on oath under section 340(2), Criminal Procedure Code and examined three witnesses in defence namely, Maulana Abdul Baseer Shah, Abu Yahya and Sabrnne Muslim name Sadiqa.
17. So far as the two accused are concerned, their statements in essence are not much different than what they have stated in their statements under section 342, Criminal Procedure Code. The first two defence witnesses were rather to support the contention of the accused about place of their arrest in that it was Afghan General Store near the Mosque of Sector J-II in Phase II of Hayat Abad and not near Khyber Park that the accused were arrested. I could not understand the purpose of shifting the venue of arrest by either side, for, I feel that this would hardly make any difference in so far as their arrest on 7-7-1991 at 9 p.m. Is concerned and both the accused in their statements have admitted the same.
18. The third witness is the wife of accused Daniel Boyd who narrated the events pertaining to presentation of cheque of US $ 5,000 to one of the officers of the Rank and eventual brawl between the said accused and Hamid Waheed who, according to the witness, paid back Rs.7,000 and that was all. The inference which the defence wanted the, Court to draw from the statement of this witness read with those of her husband under sections 342 and 'i40(2), Cr.P.C. Is to the effect that, as earlier stated, it was to hush up the matter that both the accused have been falsely charged for the offence of robbery.
19. The foregoing is the total sum of the prosecution and defence evidence produced pro and contra the charges, the accused were required to meet.
20. I have heard full-day arguments of the learned counsel for the accused and of the learned Public Prosecutor and have gone through the record of the case with considerable degree of care.
21.The case of the prosecution rests on-- (i)the evidence of the victim Zahid Nawaz and the evidence of two eye-- witnesses Mubarik Ali and Arbab Shoib, (ii)the recoveries effected from the house of the accused at the instance of Daniel Boyd, (iii)the confessional statement of accused Daniel Boyd, and
(iv) circumstantial evidence.
22. Let me state at this stage that having kept in view the requirements of section 7 of the Ordinance, I have undertaken an exercise to satisfy myself, having regard to the requirements of "Tazkiya Al-Shuhood" that the two eye--witnesses are truthful persons and abstain from major sins (Kabira). The secret, information ascertained in this behalf is placed on the record in a sealed cover. Need I mention that the two eye-witnesses Mubarik Ali and Arbab Shoib are Muslims and adult male witnesses and fully satisfy the requirements of "Tazkiya Al-Shuhood".
23. Regarding the ocular evidence, the learned counsel for the accused submitted that there has been a conscious delay in lodging the F.I.R. Inasmuch as despite directions of the victim Zahid Nawaz, no one left for the police station which was situated at a distance of hardly half a furlong. It is also contended that the names of the staff members, including the two eye--witnesses, have not been mentioned either in the F.I.R. Or in the police statements. His main criticism has been that there are numerous omissions in their depositions amounting to improvements. As such they have tried to set up' a new case and accordingly cannot be relied upon.
24. As against this, the learned Public Prosecutor maintained that the delay has been reasonably explained by the prosecution in that after the occurrence, not only the staff was panic-stricken but they had to check the cash and account in view of some transactions having taken place in the morning before the occurrence and had to be certain as to how much the Bank has been robbed off and in this manner it was hardly half an hour or 45 minutes of the occurrence that the police arrived and the F.I.R. Was duly lodged. As regards omission of the names of the staff members, it is submitted that the factum of their presence on the spot on the day and time of occurrence has been consistently mentioned in the F.I.R. As well as in police statements and it is not the defence case that they were not either the employees of the Bank or were riot present at the time of occurrence. With regard to omissions/improvements the learned Public Prosecutor submitted that a perusal of the statement of the victim as also of the two eye-witnesses recorded under section 161, Criminal Procedure Code when read in juxtaposition to those recorded at the trial would show that although there were certain parts of their depositions in Court which are not so recorded in their police statements, yet there has been no attempt, whatsoever, to set up a new case by any kind of improvements and as such the omitted portion of their statements rather supplemented what was already recorded and has in no way deviated from the main theme of the prosecution case.
25. I have given my serious consideration to the submissions made by the learned counsel for the parties to this aspect of the case and having perused carefully the statements of the victim and the two eye-witnesses, I am of the considered opinion that while, in his eagerness, the Investigation Officer tried to be as brief as possible and in his own wisdom did not deem it appropriate to incorporate in the F.I.R. Or in the police statement what appears to be missing now; the fact remains that the statements of the victim and the two eye--witnesses recorded in Court were given on oath including the so-called omissions. As regards the delay in lodging the F.I.R. I am of the view that the victim Zahid Nawaz has satisfactorily explained the same in that after the occurrence the panic-sticken staff remained busy in checking the cash and accounts so as to ascertain the exact amount the accused robbed the bank of. About his so-called omissions/improvements from the F.I.R. It may be borne) in mind that an F.I.R. Is not the beginning and the end of the case and is rather solely a step to set the law in motion. It is during the investigation that all the details are gathered and if any part ascribed to the accused by the deponent and the details of the occurrence is not mentioned in the F.I.R. It shall not be a good ground for disbelieving the prosecution story as a whole, for, minute details about the occurrence are seldom found in the F.I.R. Nor expected to be j given- and it per se is never the statement of the whole case of the prosecution. Similarly, the so-called discrepancies qua the depositions of the two eye--witnesses recorded under section 161, Cr.P.C. In my considered view, cannot' be made the basis not to believe the natural witnesses whose presence at the time when, and at the place where, the occurrence has taken place can hardly be doubted in the circumstances of a given case. It is high time that in the administration of justice in criminal cases, a statement of a witness recorded in Court which is now made on oath under section 6 of Oaths Act, 1873 (as amended by Ordinance XXVII of 1981) be given preference over a statement section 161, Cr.P.C, which firstly is given not even on solemn affirmation and secondly is recorded by a third person without reading out the same to, nor getting it signed from, its maker. In fact the test of intrinsic truthfulness of a statement recorded in Court is where the omissions found in the F.I.R. Or, for that matter, in the police statement is totally different from the manner, place and time of occurrence, it would cast a cloud of discredence on the deposition of the witness. But, if the alleged omissions flow in the same stream of the main theme of the prosecution case, and supplement it with some details, this fact would not detract from its correctness nor the prosecution version can be rejected simply because it does not conform wholly with the contents of the F.I.R. Of the statement recorded under section 161, Cr.P.C. Let it be noted that for such omissions as are considered contradictions,, it must be established that the omission was so material as to amount to a contradiction and a judge is not to derive inference therefrom like mathematic formulae and , would rather try to appraise them to the light of overall perspective of the case and the material brought on the record. In the context of they foregoing, I find that notwithstanding the so-called omissions/improvements in the statement of the victim as also the two eye-witnesses, the narration of events has been I straightforward as can legitimately inspire confidence. They are disinterested witnesses and had no ill-will whatsoever against the accused, the incident of US $ 5;000 notwithstanding, for, there is not a shred of evidence to indicate that they had any knowledge about it much less their participation and complicity therein. They were subjected to protracted and searching cross-examination but have not been shattered on material particulars of the case. And it is pertinent to note that not a single contradiction with the earlier statements of the same witnesses or with the deposition of the witnesses inter se could be pointed out during this. I have, therefore, arrived at an inescapable conclusion that they are truthful witnesses and, having no axe of their own to grind. I have no hesitation in holding their testimony as true account of the incident.
26. The next piece of evidence is the recovery. Accused Daniel Boyd did not deny to have led the police party to his house on the same day as they were arrested late in the night but while he admits the recovery of Rs.30;000 he refused the recovery of pistol with live rounds and the charger.
The prime objection of the learned counsel for the accused over this recovery is that no respectable person from the locality has been associated therewith. A reasonable explanation is forthcoming in the prosecution evidence to the effect that the efforts were made to secure the attendance of some persons from the neighbourhood but it was too late for any body, and in my opinion, rightly too in not much habited town of Hayat Abad at present, in the neighbourhood to come out of their abode at such late hours of the night. Otherwise too the prosecution evidence is consistent about the recovery of pistol along with its charger and live rounds as also the amount of Rs.30,000.
27. It will be advantageous at this stage to state that the spent bullets of .30 bore recovered from the spot when sent to the Arms Expert along with the pistol are reported to have been fired from the pistol of .30 bore recovered from the house of the accused at the instance of Danial Boyd. In this view of the matter the fact of recovery of pistol with bullets and charger along with the sum of Rs.30,000 in my opinion furnishes a sound evidence to connect the accused with the commission of the offence.
28. As regards charge under section 411, Pakistan Penal Code the amount of Rs.30,000 recovered at the instance of accused Daniel Boyd, as per defence plea was the rent amount to be paid to the landlord but excepting the bald statement of the accused supported by his wife (D.W.3) there is no evidence worth the name to substantiate this plea of theirs inasmuch as neither the landlord is produced in defence nor any other evidence is led to prove the same. In the absence thereof I have no hesitation in holding that it was the part of the amount robbed from the Bank during the commission of the offence and besides furnishing a cogent reason to support the charge of Harabah, it also goes a long way to prove the charge under section 411, Pakistan Penal Code for possessing stolen property knowing it to be as such.
29. There, is yet another piece of evidence which further provided corroboration to the authenticity of the charge against the accused and that is the motor-cycle used in the commission of the offence. Abu Hamza (P.W.) is a witness according to whom the motor-cycle borrowed by the two accused in the morning of the day of occurrence was returned in the evening. The accused have veildly accepted the proposition in their statements recorded under section 342, Criminal Procedure Code. According to the statement of one of the eye-witnesses, namely, Arbab Shoib from whose seat in the Bank, the motor-cycle parked outside was visible, lends support to the alleged use of the motor-cycle by the two accused in that it was none else but they who had committed the offences, they are charged with.
30. Last comes the confessional statement of accused Daniel Boyd, which according to the defence, at the first instance, did not qualify to be called as . Confession and at the second instance, it is exculpatory in nature and in any case is not voluntary. It may be mentioned at this stage that as per application of the Investigation Officer, both the accused were produced before the Magistrate to make confession but in the case of Charles Boyd, when apprised-- of by the Magistrate that if he makes a confession, it will be used against him; he declined to make one.
Despite this exercise, however, Daniel Boyd offered himself to make a confession. A close study of the.Deposition of Mr. Farukh Sair Khan, Magistrate Ist Class (P.W.1) would reveal that he has taken all possible legal steps to ensure that the accused makes the confession out of his free will and even the slightest possible element of coercion or undue influence is removed from his mind. His deposition affirms that it was only when he was satisfied of his making the confession voluntarily that he recorded the same. Again so far as nature of the confession is concerned it is admitted by the accused that he did mention to the Magistrate the incident of US $5,000 cheque and the consequent brawl that has taken place between him and one of the Officers of the Bank. This statement forms part of his confession. It is in the wake of this that he confessed his guilt in order to justify the robbery he had committed in furtherance of his common intention with his co-accused Charles Boyd. Shere justification would thus not take the act of robbery out of his criminal act and, however, justifiable his cause had been, the criminality of the act cannot be washed of therefrom.
In this context of the matter, I am of the firm view that not only the confession falls within the definition thereof but is also inculpatory and was made voluntarily. I am further of the view that under Article 43 of Oanun-e-Shahadat, it furnishes strong circumstantial evidence against accused Charles Boyd of his involvement in the offence. He is charged with, inasmuch as the recovery of two kinds of empties viz. Of .30 bore as well as .25 bore from the spot legitimately indicates that there were snore than one person who participated in the crime, using two different kinds of weapons.
31. In this connection it is also stressed on behalf of the accused that the confessional statement is retracted and cannot be used against the maker and much less against the co-accused. I have given my due attention to the argument. It is now well settled that if the Court holds the confession to be voluntary and its admissibility is established, there is nothing in law to prevent the Court from basing a conviction even solely on a retracted confession, if it is believed to be true though prudence demands that conviction on such a confession should generally be avoided unless corroborated on material particulars. In this context, it will be pertinent to note that firstly I have already. Held the confession as voluntary and on the foregoing legal premises the retracted confession of Daniel Boyd can solely form a valid ground to record his conviction. But, it is not the case with the instant confession inasmuch as besides being voluntary, there is ample corroborative material available on the record in the shape of empty bullets of .30 bore as well as of .25 bore recovered' from the spot besides the spent bullet and broken piece of glass coupled with the recovery of one of the two weapons of offence and three live cartridges with charger as also the allegedly robbed amount of Rs.30,000 recovered at the I instance of the accused Daniel Boyd. Apart from it there is direct evidence of the victim and two trustworthy witnesses coming forth to connect the accused with the commission of the offence. Accordingly, notwithstanding its.
Retraction, I am of the considered opinion that the confession made by accused Daniel Boyd is admissible in evidence against him and furnishes a circumstantial evidence against accused Charles Boyd.
32. In the end I would like to refer to the two pleas which the defence have introduced while examining the victim and the two eye-witnesses as also in the statements of the accused recorded under sections 342 and 340(2), Criminal Procedure Code in order to raising a reasonable doubt in the mind of the Court with two-fold object. One, that the news appeared in certain daily newspapers portrayed a different version in so far as the accused involved in the instant occurrence of United Bank Limited Hayat Abad Branch was concerned in that one of them was killed in a police encounter within the limits of Police Station, Pushtakhara the same day and two; the incident of cheque of US $ 5,000 which, according to the defence, formed a motive for the victim and the two eye-witnesses to falsely implicate the accused instead of real culprits.
33. The first riddle has been solved in that on the same day a case was registered in the Police Station Pushtakhara vide F.I.R. No.175 dated 20-6-1991 about 8-45 a.m. i.e. About 15 minutes earlier than the instant occurrence wherein one Sherinzada having committed a murder the same day earlier at about 6-45 a.m. Was intercepted by the, police and was killed in the encounter. This man was the same Sherinzada who had been mentioned in the press in Havat Abad dacoity case.
34. Regarding the other plea it is amazing to note the manner in which accused Daniel Boyd tried to open the account in the Bank on a cheque which was in his name and was of a substantial amount of US $ 5,000 equivalent to positively more than Rs.100,000. There is no explanation forthcoming at to why he did not go himself. His wife who appeared as D.W. 3 is a pariah-observing lady who is introduced as such in the prosecution evidence by the defence and the appeared in the witness-box also as a completely black "burqa"-clad lady with a thick veil on her face which otherwise too was covered with "burqa". She was wearing even long gloves and not a single part of hers was visible. How in this state she could be expected to drive a Suzuki Van to and from the Bank or, for that matter, visit the Bank with the cheque of such a heavy amount while it is in defence evidence that it has always been her husband who has been doing this job and he runs his personal account in the Bank of Oman, Peshawar. Was it a ruse or a trap to attract and hook a member nut of the staff of the Bank by staging a drama of presenting a cheque, the questioned authenticity thereof notwithstanding, then see, to it that it is lost and thereafter grabbing the person and squeezing an amount of Rs 7,0(N) at the cost of his reputation and then felt satisfied too with that amount by taking no subsequent action whatsoever till last against Hamid Waheed either by reporting to the police for her having been defrauded or approaching by way of a complaint to the higher Executive of the Bank.
35. An overall examination of the matter gives rise a legitimate impression in my mind that, at the first instance, accused Daniel Boyd planned an exercise to defraud the Bank on the pretext of their losing a cheque of US $ 5,000 and on this pretext to extract as much money as they possibly could.
But attaining no substantial success in this venture of theirs, both the accused were too eager in acquiring funds and, in furtherance of their common intention, they conspired to commit the robbery which they thought, being almost an order of the day in. Certain unfortunate parts of the country, they would get away with it. Again they did not even attempt to abscond thereafter most probably that on account of their being foreigners, they could hardly have been recognised by the victim or other members of the staff of the Bank in those panicy moments coupled with the fact that the news of the occurrence published in certain Dailies on the very following day i.e. 21-6-1991 showing certain persons other than the accused as the culprits involved in the instant case, provided them sufficient cover.
36. Viewed in the perspective of the above both the pleas raised by the learned counsel for the defence fall to the ground and I have no hesitation to repel the same.
37. On the other hand, I tend to agree with the learned Public Prosecutor that it rather provided a motive to the accused to commit the offence they arc charged with. In this regard, he has referred to the confession of Daniel Boyd accused wherein after narrating the events taken place between him and his wife on one hand and Hamid Waheed on the other, he along with his co---accused Charles Boyd robbed the Bank by show of force on the pretext that he was just taking his own money from the Bank.
38. The upshot of the foregoing discussion is that the prosecution has been successful in bringing home the guilt to the accused and have proved the charges framed against them beyond any shadow of doubt. Consequently, I hold both the accused guilty under section 17(3) of the Offences Against Property (Enforcement of Hudood Ordinance, 1979 as also under section 506 read with section 34, Pakistan Penal Code and I further hold accused Daniel Boyd guilty of offence under section 411, Pakistan Penal Code, they stand convicted accordingly.
39. The question of sentence will not detain me any longer. The accused are adults and in the course of committing the offence of Harabah, the amount which has been taken away certainly exceeds the `nisab' even at the existing rate of Rs.3,000 per ten grams in that their share in the amount taken away come to Rs.41,238.50 and as such is much more than the `nisab'. Again the case of either of the accused does neither fall within sections 10 or 11 of the Ordinance. In this context of the matter, I hereby order that both the accused shall be punished with amputation of their right hands from their wrist and of their left feet from the ankles. Till the execution of the sentence they shall be held in judicial lock-up as prisoners undergoing simple imprisonment.
40. The accused are further sentenced under section 506/34, P.P.C. To five years' R.I. Each and to pay a fine of Rs.50,000 each or in default thereof to undergo further R.I. For two years each.
41. Accused Daniel Boyd is also convicted under section 411, Pakistan Penal Code and sentenced to undergo two years' R.I. And to pay a fine of Rs.30,000 or in default thereof to suffer further R.I. For one year. Both the sentences to run concurrently.
42. Both the accused as also the Public Prosecutor have been supplied the copies of this judgment and they have been made to understand that they can prefer an appeal if so advised against their convictions and sentences to the Supreme Appellate Court within a period of seven days.
43. The stolen property i.e. The money amounting to Rs.30,000 shall be returned to the victim after the expiry of period of appeal. Similarly the other case property be kept in safe custody till such period.
44. Both the accused after. Undergoing their sentences shall be deported to their country of origin.