These are two criminal appeals Cr. Appeal No.1/P of 1994 is filed by Dilbar son of Asmatallah, resident of Village Sang-e-Marmar Koroona, Tehsil and District Mardan and Jail Criminal Appeal No.10/1 of 1994 is filed by Diyar Gul son of Hassamuddin, resident of Zakria, Tehsil and District Swabi.
Both these appeals are directed against the judgment dated 7-12-1993 passed by the learned Sessions Judge, Swabi whereby both have been convicted under section 395, P.P.C. Read with section 149, P.P.C. And section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and each has been sentenced as under:--- Section 148/149, P.P.C. Three years' R.I. And a fine of Rs.5,000 or in default six months' R.I.
Section 395/149, P.P.C.Five years' R.I. And a fine of Rs.10,000 or in default further one year R.I.
The benefit of section 382-B, Cr.P.C. Has also been extended. Both the sentences have been ordered to run concurrently.
2. It may be mentioned that as stated by the learned counsel for the appellant at Bar Jail Criminal Appeal No. 10/1 of 1994 is infructuous for the reason that the appellant Diyar Gul has undergone the sentences and is out of jail. However, I am disposing of both the appeals on merits by this single judgment.
3. Briefly stated it is the case of prosecution that on 20-7-1989 an amount of Rs.5,00,000, which was being taken from Habib Bank Limited, Swabi to Habib Bank Limited, Faujoon in a Pajero Jeep by a cash squard of Habib Bank, Swabi, was snatched, on a gun point, from the cash squard who were unboarded from the jeep, by the appellants and their absconding co-accused. The report Exh.P.A./1 lodged by P.W. Anwar Ali at Police Station Noshera Kalan on 20-7-1989 sent to Police Station, Swabi which forms the basis of case F.I.R. Exh.PA. Reads as under:---
4. After usual investigation the appellants/accused along with their co---accused were sent to the learned trial Court where the prosecution in all examined nineteen witnesses. P.W.1 is Anwar Ali. He is the complainant who reiterated his statement as mentioned above. P.W.2 is Pazir Muhammad who was Driver in Habib Bank Limited, Swabi and was driving the Pajero Jeep wherefrom Rs.5,00,000 were snatched. He is eye-witness of the occurrence who supported the case of prosecution . P.W.3 is Muhammad Azeem Khan, Additional S.H.O. He is a marginal witness to the recovery memos. Exh.P.W.3/1, Exh.P.W.3/2 and EXh.P.W.3/3. P.W.4 is Gul Muhammad Khan, Tehsildar who conducted identification parade of appellant Dilbar on 9-8-1989 wherein he was identified by P.Ws. Anwar AIL Pazir Muhammad and Maqbool Hussain. On 3-9-1989 he got identified two packets of currency notes of Rs.10,000 each by P.Ws. Anwar Ali and Zaristan, Cashier. P.W.5 is Noshad Khan, S.I. He arrested the appellant Dilbar. On 1-8-1989 and recovered cash amount Rs.11,100 and other articles and handed over the same to Inspector, C.I.A. On 2-8-1989. P.W.6 is Sher Hassan Khan, Line Officer. He prepared recovery memos. Exh.P.W.6/1 which concerns the recovery of currency notes from absconding co-accused Dilshad. P.W.7 is Fazal Mabood Khan, Manager, Habib Bank, Swabi. He is a formal witness who produced the licence copy of D.B. Shotgun P.1 to Investigating Officer. P.W.8 is Faujoon in whose presence on 24-7-1989 Rehmanuddin produced amount of Rs.45,000 from his house and handed over the same to Diyar Gul, appellant who had gone there in hand cuffs along with police party. The amount was taken into possession by the Investigating Officer vide recovery memo. Exh.P.W.8/1 which bears his signature as a marginal witness. P.W.9 is Bazeed Khan, Inspector who Investigated the case. He arrested Diyar Gul, appellant on 27-7-1989 and got recorded his confessional statement before the Magistrate on 3-8-1989. He also recovered an amount of Rs.45,000 on his pointation from Rehmanuddin acquitted co-accused, whose confessional statement was also recorded on 3-8-1989. He arrested the appellant Dilbar on 2-8-1989 from whom cash amount of Rs.11,100 and some other articles were already recovered by A.S.I. Noshad P.W.5 and got recorded his confessional statement on 8-8-1989. He also recovered Rs32,000 on his pointation from his Baithak. On 9-8-1989 he got him identified in an identification parade by P.W.4 Gul Muhammad Khan, Tehsildar. He also arrested other accused in this case and submitted challan on 18-1-1990 and also submitted supplementary challans on 3-6-1991 and 11-7-1991 P.W.10 is Zafar Iqbal Khan, Magistrate who recorded confessional statement of appellants Diyar Gul and Rehmanuddin on 3-8-1989 and of appellant Dilbar on 8-8-1989. P.W.11 is Muambar Khan, Inspector who helped P.W.9 in the investigation of this case. He is also a marginal witness to the recovery memos. Exh.P.W.8/1 and Exh.P.W.9/4, P.W.12 is Abdul Qayum Khan, S.H.O. Who arrested acquitted co- accused Bashar in this case. P.W.13 is Pervaiz Khan, S.H.O. Who brought report of the complainant to Police Station, Swabi. P.W.14 is Jan Muhammad, A.S.I. Who arrested acquitted co-accused Johar in this case. P.W.15 is Jamshed Khan, S.H.O. Who submitted supplementary challan against acquitted co-accused Malak Ghawar. P.W.16 is Muhammad Riaz, FC who was entrusted with the warrant of arrest against Malak Ghawar and others. He executed warrant and proclamation notices according to law. P.W.17 is Muhammad Anwar Klian, A.S.I. Who registered the case vide F.I.R Exh.P.A and also brought a jeep of the Bank from Mohmand Agency. P.W.18 is Muhammad 1qbal Khan, A.S.I.
Who arrested absconder co--accused Dilshad on 16-8-1989. P.W.19 is Muhammad Nazir Khan, A.S.I.
Who partly investigated the case and then handed over the investigation to P.W.9 Bazeed Khan.
5. The appellant/accused Dilbar made a statement under section 342, Cr.P.C. Wherein he pleaded innocent. Regarding cash amount of Rs.11,100 recovered from his possession he stated as here under:--- "I was arrested without any fault on my part and the I.O. Snatched the abovementioned amount from me which was of my own and in no way was the stolen amount."
Replying to another question about Rs. 32,000 recovered on his pointation as stolen property he stated that the said amount in fact belonged to his cousin Munir Khan. He had given the said amount to the I.O. Under the threat that the police will torture him. Regarding the identification parade he stated that he was shown to the P.Ws. At police station before the identification parade.
He stated that he was innocent and was maliciously involved by the police in this case. He declined to make any statement on oath.
5: The appellant Diyar Gul also denied, the allegation and pleaded innocent. He denied to have made any voluntary confessional statement and stated that the same was the result of police torture. Regarding the amount of Rs.45,000 recovered on his pointation as stolen property he made a statement in the following words:--- "I have not pointed out the place where the alleged occurrence had taken place. No stolen money had been recovered from me or at my instance. The tractor was sold by the father of accused Rehmanuddin and the police raided the house of accused Rehmanuddin recovered Rs.45,000 which was not the stolen property but was in fact the price of the tractor."
He stated that the P.Ws. Were police officials and were interested in his conviction. He also declined to make a statement on oath in disproof of the charges levelled against him.
6. Munir Khan appeared as D.W.1 and made a statement in the following words:-- "Accused Dilbar is my cousin. Inspector Bazeed Khan had come to Mardan, in connection with investigation of this case. The said Inspector met me, he arrested accused Dilbar and brought him to P.S. Swabi; where he hanged him through his hands and tortured him due to which Dilbar asked me, that the police is torturing him and is demanding money from him. The accused Dilbar requested me to arrange an amount of Rs.32,000. I arranged' the amount of Rs.32,000 from my shop and handed over the same to Bazeed Khan, Inspector."
7. I have heard the learned counsel for the parties and have perused the record with their assistance.
8. It transpires that the learned trial Court has disbelieved the identification parade due to some incurable infirmities and has correctly held the same as invalid and inadmissible. However, on the basis of their confessional statements and recovery of stolen amount on their pointation, the learned Judge has convicted and sentenced the appellants/accused as mentioned above.
Thorough scrutiny of the evidence brought on record in respect of confessional statements of the appellants and recovery of stolen amount on their pointation is, therefore, necessary to determine their guilt or innocence in this connection.
9. It appears from the record that the confessional statements of the appellants Diyar Gul and Dilbar were recorded respectively on 8th and 7th day of arrest. Thus considerable delay has occurred in recording the same. Although as held in so many cases, mere delay in recording confession, in principles, is not fatal to the prosecution when the Court is satisfied that the confession is true and voluntary. However, in case the accused raises the plea of having recorded the confession due to inducement, promise, threat or torture by the prosecuting agencies there should be some satisfactory explanation for the delay in recording the same so that the Court is enabled to arrive at a correct conclusion. The confession is in fact acknowledgement of one's guilt in terms of offence and is a sort of information which carries with it the probability of truth provided there is nothing on the contrary to falsify or disprove it. However, when it is retracted or is alleged to have been recorded under pressure, threat or torture etc. a reasonable doubt is created about its veracity and the Courts are bound to receive the same with great caution. In all such cases the doubt needs to be dispelled either by some other reliable evidence or strong corroborative circumstance, in the absence of which intrinsic worth of the confessional statement remains suspicious and for that reason it alone cannot form basis for conviction.
10. In the present case no explanation is brought on record to show what caused the,, delay in recording these confessional statements when the appellants were already available in police custody. Obviously it casts doubt on the voluntary nature of the statements and render them suspicious, especially so when we observe that both the appellants have taken a stand in their statements under section 342, Cr.P.C. To that effect. The appellant Diyar Gul has specifically alleged that his confessional statement is the result of police torture. Several suggestions in this respect have been made to P.W.9. Trend of the cross-examination of P.W.10 who recorded the statements is also suggestive of the same as well as of the fact that the confessional statements have not been recorded in accordance with the mandatory provisions of section 164, Cr.P.C. Deposition made by D.W.1 Munir Khan further shows that appellant Dilbar was subjected to torture by the police. Both the appellants have retracted their confessional statements. It may be significant to point out in this connection that in his confessional statement one of the acquitted co-accused namely Rehmanuddin has alleged that he had handed over Rs.45,000 to the police party as demanded by Diyar Gul, appellant on 28-7-1989. However, it is the deposition of one of the prosecution witnesses, namely Faujoon P.W.8, that Rehmanuddin was not present at the time of handing over the said amount to the police. He admitted that the said amount had been handed over by Muhammad Amin. In the light of this deposition there hardly remains any further need to highlight the involuntary nature of these statements and as such it would be very unsafe to maintain conviction on their basis.
11. So far as the recovery is concerned it is borne out on record that there were no specific marks of identification on the stolen currency notes. Neither any number of any currency note was on the record to tally it with any recovered currency notes nor there was affixed any seal on the bundle of the currency notes that could m any way render help in its precise identification beyond any reasonable doubt. The complainant has clearly admitted that they do not affix their seal on the currency notes. It appears, however, strange to note that P.W.9 has alleged that the seal of Habib Bank Limited, Swabi was there, though he admits that it was dim and could not be read properly. It is also noteworthy that the "baithak" of appellant Dilbar wherefrom the amount of Rs32,000 is shown to have been recovered from an Almirah on his pointation is stated, as admitted by P.W.9, to be having no boundary wall and he also did not remember if the door of the said Baithak or almirah was opened or closed. It is also significant to mention that the mandatory provisions of section 103 Cr.P.C. Have been violated and no respectable inhabitant of the area has been associated with the search proceedings and the only one independent witness cited as marginal witness to the recovery memo. Exh.P.W.9/4, namely Muhammad Shah, was abandoned by the prosecution as unnecessary.
12. Moreover it is pertinent to observe that one of the marginal witness, namely Muhammad Azeem, to the recovery memo. Exh.P.W.3/3 vide which the amount of Rs.11,100 has been shown as recovered from Dilbar was not recovered from the accused Dilbar in his presence, as admitted by him in the cross-examination. The other marginal witness Khanzeb has been abandoned.
13. It is also very pertinent to note that according to the evidence of P.W.9 Bazeed Khan, Inspector as well as that of P.W.4 Gul Muhammad Khan, Tehsildar, Anwar Ali complainant and Zaristan, Cashier, Habib Bank Limited recovered stolen amount in the proper identification parade on 3-9- 1989 and a report Exh. P.W.4/1 was prepared in this behalf. However, it is very strange that P.W.1 Anwar Ali who was actually the best person to come out with the same has not uttered a single word in this respect. The other witness of identification of currency notes in identification parade namely Zaristan has not been produced. This renders the testimony in respect of identification of recovered property as mere hearsay and shatters the evidentiary value of the evidence regarding the recovered currency being the stolen one.
14. Consequently for the reasons stated, above I have no doubt in my mind that the prosecution has not been able to prove its case against the appellants beyond any shadow of reasonable doubt. Hence, I allow the appeals filed by Diyar Gul alias Diarai son of Hasamuddin and Dilbar son of Asmatullah Khan, set aside their conviction and sentences and acquit them of the charges. The appellant. Diyar Gul is already out of jail. The appellant Dilbar is in jail, he shall be released forthwith if not wanted in any other case. The case property shall be restored to the appellants according to law.