1. ' NAZIM HUSSAIN SIDDIQUI, J.---Appellants Naseer Ahmed, Nadir Khan, Kaleem Ahmed, and Shah Nawaz have been convicted under section 395, P.P.C. By learned Judge, Special Court ,III (Suppression of Terrorist Activities), Karachi, vide judgment dated 13th July, 1991 and each of them has been sentenced to under go.R.I. For 14 years. Benefit of section 382-B, Cr.P.C. Has been extended to them. All the appellants have separately filed appeals to impugned said conviction and sentence and these four appeals (Criminal Appeals Nos.43 and 120 of 1992, 203 and 280 of 1991) are being disposed of by this common judgment.
2. ' The case of persecution, in brief, is that complainant Nazir Khan, who is a journalist and is serving in newspaper `JASARAT' along with his family resides at House No, B/7, Shamsi Colony, Malir Halt, Karachi. On 31-3-1990 at about 2-45 p.m. He, his son Nadeem Yousuf Zai, and his brother-in-law Muhammad Sagir were present in the house, when the call-bell rang. Nadeem had gone at the gate to find out as to who had come. 2/3 boys were there and they inquired if one Tariq resided there. Nadeem replied them in negative. Thereafter, those boys pushed Nadeem and entered the house. They were armed with weapons. The complainant heard shrieks of Nadeem and came out.
3. He saw five young boys of age group 20/25 years. One of them was armed with a Klashnikov and remaining four had T.T. Pistols. They, at the point of pistol and Klashnikov, brought the complainant and Nadeem inside the house and herded all the family members in a room. Thereafter, they took away five sets of golden ornaments, a licensed revolver with 25 cartridges, Sony T.V. Colour 20", V.C.P., blue Toyota Corolla Car, bearing No,012-651, Model 1975 and a Motor-cycle bearing No,KAL- 9236. Both Car and Motorcycle at that time were parked outside the house. Total value of the property so taken away was Rs,2,13,672.
4. ' The investigation of the case was conducted by Mohabbat Sher, Additional S.H.O. And Muhammad Shafi, S.H.O., P.S. Malir Karachi. On 31-3-1990, Mohabbat Sher recorded F.I.R. He then proceeded to the scene of occurrence and prepared its Mushirnama in presence of Mushirs Nadeem Yousuf and Muhammad Sagir. He recorded further statement of complainant and examined P.Ws. Nadeem Yousuf Zai and others. On 8-5-1990, he arrested appellants ICalim and Shah Nawaz, while they were in custody of 'B' Section Police Station Sukkur and prepared necessary- Mushirnama.
5. Muhammad Shafi, S.H.O., while on patrol duty, on 30-4-1992, had arrested appellants Naseer and Nadir and had secured Car bearing No,012-851, one T.T. Pistol, and a carbine along with 7 bullets. It is alleged that, during the investigation, the above-named appellants had disclosed that Kalim, Shah Nawaz, Jabbar and Yaseen were with them at the time said dacoity was committed. He interrogated Kaleem and Shah Nawaz and, during interrogation, appellant Kaleem disclosed that V.C.P. Robbed by them in said dacoity was lying in his house and he led the police and Mashirs to his house, situate in Malir No A/77 Malir Colony, and from there produced said V.C.P. Which was secured in presence of Mushirs Nazir Khan and Muhammad Ashraf. On completion of investigation, the charge-sheet was submitted against Naseer Ahmed, Nadir Khan, Kaleem Ahmed, Shah Nawaz, Jabbar alias Jubbo and Yaseen alias Badi. Learned trial Court by impugned judgment convicted appellants Naseer, Nadir, Kaleem and Shah Nawaz as mentioned earlier, and acquitted Jabbar and Yaseen.
6. ' At trial, the prosecution examined complainant Nazir Khan Exh.11., P.W. Nadeem Yousuf Zai Exh.12, Mohabbat Sher Additional S.H.O. Exh.13 and Muhammad Shafi S.H.O. Exh.14. Since acquitted accused Jabbar and Yaseen were arrested after some time of arrest of the remaining four accused, therefore, the statements of complainant Nazir Khan and P.W. Nadeem Yousuf Zai were recorded twice. Last time, their statements were recorded on 16-1-1991.
7. ' The appellants and acquitted accused, in their statements recorded under section 342, Cr.P.C., have denied the prosecution's allegations and claimed to be innocent. They examined themselves on oath. Acquitted accused Yaseen had also examined Muhammad Fareed and Bashir Ahmed, as defence witness.
8. ' Complainant Nazir Khan in his deposition furnished the entire details of the incident. In his statement recorded on 16-1-1991, he deposed that Jabbar, Yaseen, and other culprits viz, the four appellants, were the same. He stated that Yaseen, at the relevant time, was armed with a Klashnikov and the remaining had pistols. He deposed that they took away the key of the car and brought tools kits from the car and with the help of those tools had broken the lock of Almirah, and took away the golden ornaments, a T.V., Tape-Recorder, revolver, a wrist-watch, 4 watches, and a Camera etc. They had also snatched golden rings and golden necklace from the person of his wife.
9. When they were about-to flee, again, there was a call-bell. They herded all the male members in a room, while the ladies were driven to a separate room. They held his wife at pistol point, up to the gate of the house and when she opened the door his younger son namely Fahim Yousuf Zai stepped in. They pounced upon him, snatched the key of his motorcycle and his purse, which contained an amount of Rs,1,400. The complainant also deposed that, in identification parade held under the supervision of a Magistrate, he had identified the appellants namely, Naseer, Nadir Khan Kaleem and Shah Nawaz, as culprits of this case. The police in his presence raided the house of appellant Kalim recovered from there his V.C.P., and prepared necessary Mushirnama. In cross- examination, he deposed that he did not visit CIA Centre after the incident. He stated that photographs of accused (appellants) or suspect were not shown to him in CIA Centre or at any other place. P.W. Nadeem Yousuf, in his examination-in-chief, reiterated the facts, which his father has given in his evidence. In cross, he deposed that photographs of suspects were not shown to him. He admitted that appellants Kaleem and Shah Nawaz were not known to him prior to the incident.
10. ' Appellant Naseer Ahmad in his deposition, on oath, stated that he is a student of second year, Malir College, Karachi. According to him, he was arrested by police on 7-3-1990, when there were disturbances at Bus Stop No,15. In cross-examination, he admitted that there were two cases against him under section 307, P.P.C., and under section 17(3), Offences Against Property (Enforcement of. Hudood) Ordinance, 1979, and added that he was acquitted in those cases.
11. Appellant Shah Nawaz, on oath stated that he had gone to Sukkur to attend a function in the house of his friend along with appellant Kaleem and the police had arrested them and involved them in false cases. He admitted in cross-examination, that he has been convicted in bank dacoity case by Special Court, Khairpur. Appellant Kaleem, on oath, stated that he had gone to Sukkur to attend a function, was arrested by the police, and was involved in false cases. He admmited, in cross- examination, that he has been convicted by Special Court Khairpur in bank dacoity case. Appellant Nadir Khan stated that he has been falsely involved in this case. D.Ws. Muhammad Fareed and Shabir Ahmad deposed about acquitted accused Yaseen.
12. Learned counsel for the appellants challenged the testimony of eyewitnesses namely, Nazir Khan and Naeem Yousaf on the ground that they are highly interested witnesses and their testimony without corroboration cannot be relied upon. They also argued that corroboration worth mentioning is not available to the prosecution. Above contentions have got no force. They are natural and independent witnesses. Neither their presence at the spot at the time of occurrence is disputed nor any enmity is alleged against them. They also had no motive, whatsoever, to falsely implicate the appellants. The testimony of natural eye-witness does not require corroboration.
13. They have fully implicated the appellants in the commission of this offence. In cross-examination, the occurrence, as alleged by the prosecution, is not disputed. It is a settled law that if a witness deposes on a fact in examination in chief and the authenticity of said fact is not questioned in cross-examination, the legal presumption would be that said fact has been admitted by the party against whom it has been brought on record. In the instant case, material evidence of the complainant and P.W. Nadeem. Yousuf Zai, on relevant points, has gone unchallenged. Besides, the F.I.R. Was lodged promptly. The testimony of the complainant and P.W. Nadeem Yousuf Zai is reliable, convincing, and impeccable. There is nothing wrong in it. Accordingly, we hold that they have correctly deposed and we rely upon their testimony.
14. ' Learned counsel for the appellants next argued that identificatic parade was not' held properly and, in absence of proper identification, tt prosecution has got no case. They also contended that learned Trial Judge hi misread and misappreciated the evidence brought on record. In this connected reliance is placed, upon the cases reported in (1) 1985 SCMR page No,72 Khadim Hussain's v. The State, (2) 1988 SCMR page No,557 Ghulam Raso4 and three others v. The State. In Khadim' Hussain's case it has been held t Hon'ble Supreme Court that mere fact that a witness is able to pick out a accused person from amongst a crowd does not prove that he has identifie that accused person as having taken part in the crime which is been investigated. The rule laid down by Hon'ble Supreme Court in this case on the point of identification is as follows:-- "The principal evidence of identification is the evidence of a witne: given in a Court as to how and under what circumstances he came t pick out a particular accused person and the details of the part which that accused took in the crime in question."
15. ' In Ghulam Rasool's case Hon'ble Supreme ,Court on the point ( identification at page No,560, observed as follows:-- "The perusal of the record shows that besides suffering from botch legal infirmities which have been alluded to by the learned trial Cour the identification parade also carried an inherent defect and that that Abdul Majid P.W. Did not describe the role played by each of to appellants at the time of the commission of the offence. The sam therefore, has lost its efficacy and cannot be relied upon. Reliance I this respect is placed 'on the case of Khadim Hussain v. The Stat, reported in 1985 SCMR 721."
16. ' In above-cited Ghulam RaSool's case the occurrence took place about 10 at night on the Highway, when at gun point rebbery was committer The witness of said case namely, Abdul Majid, who claimed to have identified the culprits, had become unconcious after he was beaten by the culprit Under these circumstances, Hon'ble Supreme Court held that it was high improbable for him to have identified the culprits. Therefore, above-quote case is clearly distinguishable on facts from the case in hand; in which to occurrence took place in broad daylight and the P.Ws. And accused/appellant remained together for sufficient time and had also conversed with each the Therefore, P.Ws. Had no difficulty to identify them both at the time identification test and during the trial before the Court.
17. ' In this connection, we also refer to a case of a Division Bench of the Court reported in PLD 1988 Karachi page No,539, Muhammad Yousaf Zai The State. The relevant observation is at page No,543 and is as follows:-- "We may observe that there is no legal requirement to the effect the there should be an identity test of an accused person. If the eyewitnesses can identify the accused before the trial Court that is enough."
18. ' We also refer on this point the case reported in PLD 1990 FSC page No,38 Mumtaz Ahmed and another v. The State.
19. ' In this case at page -No,46 the following observations on the point of identification were made:- "As will be seen from the evidence, the case of the prosecution rested on the identification and recovery. It was a day-time robbery, Undoubtedly, the four prosecution witnesses namely, Sultan Mahmood, Manager, P.W.3, Inayatullah, Cashier, P.W.4. Azharul Haq, Second Officer, P.W.5 and afar Hayat, Peon, P.W. 6 had faced the ordeal. There is also nothing on the record to show that the accused had muffled their faces. This is also clear from the statement of Qadir Bakhsh P.W3. The P.Ws. Had also given their physical description in the F.I.R. The accused remained a few minutes before the witnesses' rid normally they may not forget, for times to come, the faces of such persons. In fact, incidents of the nature carve on the mind of the witnesses such indelible impression which may live with them for the rest of their life. There is also stated no reason why should the witnesses involve the appellants falsely. Had they been so disposed they could have said so in respect of any of the so many others who according to the defence, were suspected and shown to them."
20. ' Another point to be noted with regard to identification test in this case is that holding of identification test is not disputed, but only this much has been contended that the said test was not held according to law. It is alleged the culprits/appellants were shown to P.Ws. Before the test was held. Both the eye-witnesses have denied to have seen the appellants in police custody before the test and there is no reason to disbelieve them. It would always be proper to examine Magistrate on the point of identification test held during investigation, but if the Magistrate is not available, or for any valid reason his attendance cannot be secured, the factum 'of test can be proved by other evidence, including the evidence of the P.W., who was put to identification test. Accordingly, we hold that P.Ws. Had correctly identified the appellants in the test held under the supervision of a Magistrate.
21. ' Learned counsel for the appellants also argued that the 'case of acquitted accused Yaseen and Jabbar is identical to that of appellants and since the above-named two accused on the basis of same evidence have been acquitted, the appellants are also entitled to acquittal. Prime facie, we are of the view that acquittal of above-named two accused was not justified. Since the State has not preferred any appeal against their acquittal, nothing can be done in this regard.
22. ' Learned counsel for the appellants also argued that there are contradictions in the statements of P.Ws. Nazir and Nadeern, recorded on 21-8-1990 and 16-1-1991 and for this reason they should not be relied upon. Above contention is also without any force. Under Article 140 of the Qanun- eShahadat, 1984, a witness may be cross-examined as to previous statement made by him in writing or reduced into writing, and relevant to matter in question, without such writing being shown to him or being proved. It is the requirement of this Article that if it is intended to contradict the witness by the writing his attention must be drawn to the previous statement. Provisions laid down in this Article were not complied with. In fact, no question in cross-examination with respect to previous statement was asked by the defence counsel. Therefore, at this stage, the .
23. Contradiction, if any, cannot be looked into. It is for the reason that these witnesses were not provided an opportunity to explain about those alleged contradictions.
24. Learned counsel also submitted that learned Trial Judge has erred in disbelieving the defence version. The statements given by the appellants, on 1 oath, do not inspire confidence. Learned defence counsel had not specifically G pointed out any piece of defence evidence which could, on its own strength, nullify the prosecution version.
25. ' Learned counsel for the appellants also contended that sentence awarded to the appellants is not in accordance with section 395, P.P.C. This contention is sound and must prevail. According to section 395, P.P.C. Punishment for dacoity is imprisonment for life or rigorous imprisonment for a term, which shall not be less than 4 years nor more than 10 years, and shall also be liable to fine.
26. Under section 57, P.P.C., imprisonment for life shall be reckoned as equivalent to 25 years. If the punishment of imprisonment for life is not awarded, then at the most it could be for 10 years. Prior to Law Reforms Ordinance, 1972, the period for transportation for life was reckoned as 14 years.
27. Since in this case imprisonment for life has not been awarded to appellants, therefore, the sentence could not be of more than 10 years. Accordingly, the period of sentence of the appellants is modified from 14 years to 10 years' rigorous imprisonment for each.
28. In consequence, with modification in sentence as stated above, all the 4 appeals viz. Nos.43, 120 of 1992, 203 and 280 of 1991, are dismissed. The I appellants are in jail and be informed accordingly.